February 2016 – Succession Law Changes – Part 1

Author: Mitchells Roberton
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The Succession (Scotland) Act 2016 (“the 2016 Act”) was passed by the Scottish Parliament last month (although none of it is yet in force). It is not one of those Acts that makes sweeping changes to the general law of succession. The most recent Act which did so was the Succession (Scotland) Act 1964 – and that is still in force.

Instead, this new Act makes various changes in relation to what might be viewed as points of detail. But points of detail can be important. So this Bullet Point Update focuses on some of the points in the 2016 Act which may be of interest and next month’s Bullet Point Update will consider a few more.

Wills

Effect of divorce on a will

  • Many wills between spouses include a provision saying something like:

“I , Mr James Blank, 1 Any Street, Anytown, direct my executors to make over the residue of my estate to my wife MRS JEAN BLANK, residing with me.”

  • What happens if Mr and Mrs Blank get divorced and then Mr Blank dies without having changed his will?
  • Before the 2016 Act the starting point would be that the residue of Mr Blank’s estate would still go to (the former) Mrs Blank. Divorce did not cancel the provision in her favour.
  • The 2016 Act reverses that. Now, the provision in Mr Blank’s will would be automatically revoked by Mr and Mrs Blank’s divorce (unless the will expressly provides otherwise).

Rectification of a will

  • Before the 2016 Act, it was generally accepted that there was no scope for rectifying a will – even where it was drawn up on their behalf by someone else and it was obvious that its terms did not accurately reflect the instructions of the person whose will it was.
  • The 2016 Act introduces certain limited scope for applying to the court where a will of a deceased was drawn up by someone (e.g. a solicitor) on behalf of the deceased but fails to express accurately what the deceased instructed. If the court is satisfied that the will does not accurately reflect the instructions then it may order rectification as appropriate.

Implied gift in will to grandchildren if child predeceases

  • Suppose Mr White leaves a will saying – simply: “I leave £30,000 to my children.” And suppose further:

when Mr White made his will he had three children named (implausibly) A, B and C;

A dies before Mr White leaving (only) one child: mini-A;

B dies before Mr White never having had any children; and

C survives Mr White.

Who gets what?

  • There is a long-standing rule, derived from Roman law, that mini-A would take the £10,000 originally going to A – but not any of B’s £10,000 which would have gone between A and C if both A and C had survived Mr White.
  • So, mini-A gets £10,000 and C gets £20,000.
  • The 2016 Act abolishes the Roman-law rule and replaces it with something very similar but so that, in Mr White’s example, mini-A and C would each take £15,000.
  • As with the Roman law rule, the 2016 Act replacement of the rule is subject to the express terms of the will itself – and most professionally drawn wills deal with the matter expressly.

“Destinations” in wills

  • Suppose Mr Green’s will says, simply: “I leave my house to A whom failing B.” (The “whom failing” expression in the will is referred to, legalistically as a “destination”.)
  • And suppose A and B both survive Mr Green and A continues to own the house until, some years later, A dies survived by B.
  • Under the old law the general rule in such a situation is that the house goes to A on Mr Green’s death and then to B on A’s death.
  • Under the 2016 Act that is no longer so. Instead, on Mr Green’s death, B would lose all rights to the house unless the will expressly or by clear implication provided otherwise.

The above touches on some of the major changes brought to be brought in by the 2016 Act. Next month’s Bullet Point Update will look at some more.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil Mackenzie: njm@mitchells-roberton.co.uk

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