The Succession (Scotland) Bill, which aims to reform succession laws including the effects of divorce, dissolution or annulment on a Will, was introduced into the Scottish Parliament earlier this week.
The current law, which is enshrined in the Succession (Scotland) Act 1964, has been the subject of several consultations over the years with proposed changes disappearing back into the ether until recently with the Scottish Government announcing plans to pursue Succession Law reform “to ensure that the law in this area is fairer, clearer and more consistent”.
The two stage approach begins with the implementation of a number of technical legal changes recommended by the Scottish Law Commission and widely supported by the legal profession. The Scottish Government plans to introduce these provisions into law during 2015 having recently completed a statutory consultation process.
The proposed reforms include:-
- A spouse or civil partner named as beneficiary and/or appointed executor in a Will, would be treated as having predeceased the testator if the marriage or civil partnership has since been ended by divorce or annulment unless the Will expresses a contrary intention.
- Introduction of a court process to amend a Will drafted by a person other than the testator, where the will does not reflect the testator’s instructions.
- If a legacy is left to a direct descendant (e.g. child, grandchild, great-grandchild etc.) and that beneficiary predeceases the testator, then the descendants of that beneficiary would inherit in place of the predeceasing beneficiary. Again, this rule could be expressly overridden.
- Additional protections for trustees and executors in certain circumstances.
The second stage of the proposed reforms could result in a radical overhaul of current Succession Law in Scotland and will no doubt attract more interest and commentary.
Matters to be considered include how an estate should be distributed in the absence of a Will, what rights spouses and children should have in the event a Will disinherits them and what rights a cohabitant should have.
The Scottish Government has already expressed a specific intention to extend the scope of “Legal Rights”, which currently grant children and spouses/civil partners some protection from disinheritance.
It is thought the long-standing distinction between heritable property (land, houses, etc.) and all other types of property (known as moveable property) may be subject to review.
Legal Rights currently only extend to moveable property meaning an individual can bequeath their property to whomever they choose without fear of any subsequent claim by their spouse or children. The proposals currently being considered appear to favour removing such a distinction.
As mentioned this change to the law has been suggested on a number of previous occasions with a mixed reception. The Land Reform Review Group in particular dismissed a commonly expressed concern that such a change would have a negative impact on farms and rural estates.
While many rural estates are owned by family companies and trusts which would be unlikely to be affected by the proposed changes, the Scottish Government considers this change to Succession Law as a key element of its plans for Land Reform generally.
We understand that the Scottish Government will soon publish a Consultation Paper regarding the more fundamental and substantive reform proposals so watch this space.
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.