The Succession (Scotland) Act 2016 came into effect on 1st November 2016 and has changed some of the previous legalities regarding wills. Boyd Legal goes through a few of the changes that may directly affect you and your will.
If you are divorced…
Previously, if your spouse or partner was a beneficiary or executor in your will that wouldn’t change after a divorce, annulment or dissolution.
However, now that The Succession (Scotland) Act 2016 has come into place, if you get divorced, your civil partnership is dissolved or your marriage annulled, and you have appointed your ex as a beneficiary or executor in your will – that appointment is no longer valid. After your marriage or civil partnership ends, your ex-spouse or partner will no longer be a beneficiary or act as an executor or trustee as stated in your will. Of course, you may still want your ex to be included in your will! In that case, you should contact your solicitor and get your will to reflect that even though your partnership or marriage has ended, you still want them included in your will.
If you have special destination…
Special or survivorship destinations are also affected by the new Act. Previously, if a property was held in two names with a survivorship, the title would automatically pass to the survivor if one person died. Under the Act, after a divorce, annulment or dissolution, the special destination is no longer valid. Of course, if you would like to pass on your share of the title to your ex, you need to talk to your solicitor and change your will to reflect that.
If there was a clerical error…
If, for example, some wording was included in the draft will but missed out in the final will, the beneficiary would ask the court to consider the evidence of the draft will. But this doesn’t allow someone who thinks they should have been included in the will to get the will changed!
If you make a bequest in your will to a group of close relatives…
Usually, the law of succession is that a beneficiary needs to be alive in order to receive their inheritance – seems obvious enough! However, under Scots common law, a legacy can be made in favour of a direct descendant or group of direct descendants (or indeed to nieces and nephews in certain cases). For example, a parent may leave their estate to be shared equally between three children. If one of the children predeceases and they have children, they would receive their parent’s share.
The Act has changed this so it only applies to direct descendants and not nieces and nephews. Another thing that’s been changed is that direct descendants will benefit from an increase; for example, if two of the children pre-decease the testator and only one had children of their own, that child’s share would increase to half.
If you cancel your will…
Before the new Act, if you had a will, changed your mind and made a new will, then at a later date cancelled the new one, the previous will was revived automatically.
Not anymore! Now earlier wills are not revived by the cancellation of a new will. So if you cancel a new will, this means that you may die intestate – without a will. You should talk to your solicitor about either re-executing your earlier will or making a new will.
If you have a liferent…
A liferent is when you pass on the benefit of an asset, usually the right to live in a property, to one person for their lifetime, but on that person’s death the asset is passed to another person.
Previously, if a liferenter wished to renounce their entitlement, in some circumstances the asset wouldn’t be transferred until the liferenter died. The new Act states that the liferent can end when the liferenter wishes to pass on the asset.
If you have any further questions regarding you will, or wish to make a will, please call 0131 226 7464 to speak to one of our expert will specialists