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Changes to the Law of Succession in Scotland

ScotLaw

Did you know that the law of succession in Scotland changed in June – but what does this mean for people living in Scotland?

The law of succession governs who receives your assets after you die, and it was felt that the old laws had not kept pace with changes to society – such as increases in the number of people living together, rather than marrying, and changes to family structures with more people having second families or step children.

The Succession (Scotland) Bill introduced by the Scottish Parliament on 17 June takes forward some of the recommendations suggested by the Scottish Law Commission reports. The bill is aimed at modernising and clarifying some of the technical aspects which relate to succession law in Scotland. The bill wants to make sure the law is up to date, fairer, clearer and more consistent.

The new bill has some 27 sections, and it covers areas such as:

  • Reforming the law about the revival of a revoked will
  • Making changes to how survivorship operates in Scotland where there is uncertainty about the order of death
  • Establishing a process for the rectification of a will in particular circumstances
  • Testamentary provisions and special destinations that favour a former spouse will automatically be revoked on divorce
  • Reforming the law around forfeiture
  • Full protection against claw back for anyone who has b ought any estate assets after confirmation
  • Closing jurisdictional gaps so that Scottish courts have jurisdiction where the law that applies is Scots law
  • Reform other matters which include the abolition of donations mortis causa (i.e. gifts made in contemplation of death and which may be revoked by the granter)
  • Reform estate administration by putting in place protection for trustees and executors in certain circumstances, and for person acquiring title in good faith

 

There were other recommendations in the Scottish Law Commission Reports which have either been rejected or put on hold to allow for further consultation. The Scottish Government is also looking at the abolition of the distinction between moveable and heritable property, which could change the way children and a spouse’s legal rights are worked out.

This has attracted attention because it means that the surviving spouse and/or children would be entitled to a legal share, and that there should be no special exclusions from claims to legal shares of businesses, such as farms and estates.

Farm and estate owners see this as problematic because larger areas of land with high capital values but which generate low levels of income wouldn’t be able to support multiple owners and would need to be broken up in order to pay out to the claimants.

The Scottish Government, however, views it as an important contribution to the spread of ownership of land in Scotland.

A second consultation on the Scottish Law Commission’s proposed new scheme for intestacy, protection from disinheritance under a will and extended rights for cohabitants was published in June and closed on 18 September 2015.