Notable changes in the succession (Scotland) bill in particular with respect to wills

The Succession (Scotland) Bill was introduced in the Scottish Parliament in June 2015 and received Royal ascent on March 2016.  For anyone looking for a detailed analysis of the changes we would recommend the Scottish Parliament SPICE Briefing Document by Sarah Harley Clark entitled Succession (Scotland) Bill Reference 15/48 which we have utilised to provide some detailed points which you may find relevant.

1. You may be aware, or if not you will now be upon reading this article, that where a marriage or civil partnership comes to a legal end this would have no effect on any provision in a Will already done.  Section One of the new Bill however would reverse this rule.  If a marriage ends by divorce, or a civil partnership terminates by dissolution, any provisions within the Will in favour of the Testator’s former spouse or civil partner will not now take effect.  This section applies where the deceased died domiciled in Scotland, i.e. permanent residence here.  You can, however, stipulate within your Will if you did not wish this rule to apply.


2. Clients are slightly confused when Wills are prepared and the inevitable question is asked if their title deed  is in joint names or under a survivorship destination.  If a title deed is under a survivorship destination it implies that on the death of the first of these individuals his/her share of the said property would automatically pass to the surviving partner irrespective if the Will stipulates something different.  In terms of a title simply in joint names it means each individual owns a one half share and are free to pass that one half share to whomsoever they wish.


3. The current Law will provide that special destinations in favour of a spouse/civil partner should come to an end in divorce/dissolution or annulment, but is extending this provision to moveable property (other than buildings/land) as well as heritable property.


4. Sections 3 and 4 of the Bill aim to allow errors in a Will which are deemed to be simple and obvious and are able to be corrected after the death of the Testator.  Whilst an individual could alter or revoke a Will during his or her lifetime there was no power to enable Wills to be amended after that individuals death.  Section 3 would allow the Court of Session and a local Sheriff Court to rectify a Will prepared by someone other than the Testator, but the Court have to be satisfied that the Will did fail to give effect to the Testator’s instructions, the deceased must have died domiciled in Scotland and there needs to have at least been some form of instruction from the Testator about the Will to compare it to the errored Will.  There is a time limit placed upon which this power can be used albeit the Court have discretion to waive the time limit if due cause is shown.


5. Section 5 of the Bill provides that there will be no revival of an earlier Will where a later Will was revoked by the Testator.  This alters the existing Rule whereby if a current Will was revoked any earlier Will could be revived and could take effect.  This Rule is no longer applicable.


6. Section 7 clarifies the question with regard to Liferent.  A Liferent can be created in a Will where you leave a property to a person in Liferent and the other party in Fee.  A Liferenter would have the right to use the property and enjoy it, but cannot sell or dispose of it for the duration of their lifetime.  On that party’s death, the Fiar would own the property absolutely.  Section 7 provides that the property in question will pass to the Fiar at the point at which the Liferenter gives up the Liferent unless the document that creates the Liferent states that something else is to happen, or there is a competing legal obligation.


7. Section 8 of the Bill looks at the situation whereby in terms of a destination within a Will, if the first beneficiary dies shortly after the Testator that regardless of the type of property at issue the beneficiary who has died shortly after the Testator will benefit fully from that legacy in question, unless the Will expressly provides otherwise.

Contact our Wills Solicitors Ayrshire, Scotland

Further will follow with regard to alternative amendments being made in terms of this Act, but it can be clearly observed that some of these provisions do require to be taken into consideration in terms of Will planning. We try where possible in terms of Will provisions not to charge client’s a fee for preparation of Wills and if you feel you require to readdress your Will in view of the points highlighted here then please do not hesitate to contact us.