Matrimonial implications of the new Succession legislation
Matrimonial implications of the new Succession legislation06 March 2019 Written by James & George Collie

A Will




The Succession (Scotland) Act 2016 was enacted earlier this year and when it comes into force it will introduce not only substantial changes to the Law of Succession in a wider sense but also in relation to matters of particular interest to family lawyers and those who are going through a separation.


Since the Succession (Scotland) Act 1964 came into force, there have been significant changes not only in family law but in society as a whole.  Statutes have been created dealing with parties who cohabit and, indeed, in relation to those who enter civil partnerships.


Until now, the fact of a couple divorcing, or the marriage being dissolved or annulled, did not affect provisions of a pre-existing Will.    The new position will be that the former partner, civil partner or spouse of the person who dies will be treated, for these purposes, as having predeceased the individual who made the Will, will not be deemed to be appointed as Trustee or Executor in the winding up of the estate and will not benefit from the deceased’s estate unless the Will expressly provides as such, even if the marriage is terminated. These provisions are broadly in line with the current provisions in England.


The Act goes further in relation to title to heritage such as land or houses.   At present title may be taken in the name of a couple and the survivor of them.  The effect of this, until the new Act comes into force, is that on the death of the first named individual, title to the entire property automatically vests in the survivor.   If the couple had separated or indeed divorced but title to the property remained in their joint names, title would still have transferred to the survivor unless the parties had entered into a binding Minute of Agreement “evacuating” that provision.  The Act deals with this anomaly by providing that the survivor will be treated as having predeceased the individual who actually dies, the effect being that one half of the land or house will form part of the deceased’s estate for the purposes of the succession. Note that it would appear that these provisions will not affect, for example, nominations of death benefits such as payments for death in service, nominations for payments of pensions etc.


All in all, the aim of this statute is to bring matters of succession up to date.  There will be protections for the disinheritance of a cohabitee and proposals are in hand to extend cohabitee’s claims where a party dies testate i.e. having left a Will.  The Act does not of course cover the situation where a couple cohabit i.e. are not married or are not civil partners.  There are therefore proposals at the moment that a period for lodging a claim by a cohabitant of a deceased person should now be one year from the date of death as opposed to the current six month period.   Important issues which a cohabitant would have to consider before making such a claim would be whether the claimant qualifies as a cohabitant, whether they were cohabiting immediately prior to the death and what percentage of the claim a surviving spouse or civil partner would be entitled to and which the cohabitant could now make.


Whilst the Act will go some way towards taking account of changes in society since the original Succession (Scotland) Act came into force, it is still imperative that clients who are making a Will or who are separating from their spouse, civil partner or cohabitant seek independent legal advice sooner rather than later.


For further advice on any aspect of this article, please do not hesitate to contact any member of the Family Law Team, or Forbes McLennan.

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