Remember Remember... The 1st of November

Succession (Scotland) Act 2016

With Bonfire Night approaching, many people are familiar with the old saying – “remember remember the 5th of November…”. However, it is the 1st of November 2016 which marks a historic day for Scots law – the implementation of the Succession (Scotland) Act 2016. With no changes having been made to the laws of succession since 1964, this is the first major change to have occurred in over 50 years! Further changes are expected next year with a separate Succession Act expected to be presented to the Scottish Parliament.

A number of key changes will now take place, such as the requirement to obtain a Bond of Caution (an insurance product required in some cases where the deceased dies without a Will) being removed for small estates; a former spouse or civil partner no longer being able to inherit under an existing Will following a divorce and special destinations (which can apply to automatically transfer to the survivor a house held in joint names) to be revoked on divorce.

So, how do these changes affect you? The changes are most prominent in relation to Wills. The new legislation affects four different areas: (i) Wills after divorce, dissolution and annulment; (ii) Wills containing mistakes; (iii) revoking old Wills; and (iv) situations where family members die together.

Previously, if you made a Will in favour of a spouse/civil partner or appointed them as an Executor, and the relationship subsequently ended, the terms of the Will still applied, if no amendment to the deed was made at the time. This meant that if you forgot to amend your Will once the relationship had ended, contrary to what you may have wished, an ex-partner could inherit, or be in charge of distributing, your assets.

Under the new rules, any appointment of an ex-partner as Executor, or bequest to them made before divorce/dissolution/annulment will automatically have no effect unless you state otherwise.

This may be seen as a welcome change for some who may have made a Will and who do not wish for their ex-partner to inherit, but who may not have had an opportunity of rewriting their Will. It is important to be aware of these changes in order that you can plan ahead and ensure that any Will you have in place suitably narrates what you wish to happen upon your death.

The position regarding the revocation of old Wills has also reformed. It was not uncommon for people to make a Will, but then later make a new Will cancelling the previous one. However, if the new Will was cancelled, the old one would automatically come back into force (unless it had been destroyed). With the new legislation, old Wills which are revoked cannot be revived.

Again, this may be seen as a favourable change for some. For example, when old Wills came back into force, it was most likely not what the person envisioned and did not reflect their wishes. This change serves as another timely reminder to ensure that your Will is up to date and reflective of how you wish your estate to be dealt with after your death. It is important to remember that, without a Will, your estate will be distributed in accordance with the law of intestacy, which means that your estate may not always pass to the people you intended.

The rules surrounding situations where a number of people die together (often close relatives) have also been changed. Formerly, having to establish the order of people’s deaths could have a significant effect on the distribution of assets. The new legislation has simplified matters meaning that the law will now deem that these people died simultaneously and no-one survives the other.

Having an error in a Will also used to cause some anxiety. However, the law will now allow terms of a Will to be corrected, in limited circumstances, where there is a mistake, such as a name being wrongly narrated.

Given the impact of the changes now in force, perhaps now more than ever, it is crucial to ensure that you have a Will in place which reflects your wishes and intentions. The consequences of not doing so may be severe.

Should you wish to discuss how the new legislation may affect you, please contact our Private Client Team below.

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For More Information Contact:
Laura King
Mobile: 07841 920 095
Direct Dial: 0131 516 5359
Email:lking@gilsongray.co.uk

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For More Information Contact:
Ailidh Ballantyne
Direct Dial: 0141 530 2037
Email:aballantyne@gilsongray.co.uk

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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.