Scottish government proceeds with reform of succession law

Thursday, 18 June 2015

The Scottish Government is to amend several key areas of succession law following last year's consultation.

The amendments are part of a larger programme of Scottish succession law reform and include:

  • any testamentary provision in favour of a former spouse will be automatically revoked on divorce. A divorce will also prevent property passing from one spouse to the other by way of special destination in the title deeds;
  • a modification to the rule under which the children of a legatee who predeceases the testator take the legacy;
  • executors and trustees will have a good faith defence against liability for distribution errors caused by their ignorance of a person's existence or their relationship with the testator;
  • full protection against clawback for anyone who has bought any of the estate's assets after confirmation;
  • abolition of the 'outmoded' doctrine of gifts made in contemplation of death (donations mortis causa). Instead, lifetime gifts will be presumed to be outright and unconditional unless the donor clearly stipulates otherwise;
  • allow a non-resident executor of a Scottish estate to be sued in Scotland;
  • allow Scottish courts to rectify a will that does not represent the testator's intentions, with a six-month time limit, and protection for executors who have already distributed the estate;
  • a new rule that a will revoked by a subsequent will should not be revived unless the testator expressly revives it;
  • a liferent (life interest) that comes to an end before the liferenter's death will pass immediately to the 'real' owner;
  • certain provisions dealing with two nearly simultaneous deaths (the traditional plane crash scenario);
  • provisions dealing with forfeiture by a person who kills the testator.

Certain other recommendations in the original Scottish Law Commission report in 2009 were either rejected or put on hold while further consultation is conducted.

Those put on hold are:

  • abolition of the bonds of caution that are currently required of executors-dative;
  • abolition of the rule that a will may be revoked by the subsequent birth of a child to the testator;
  • extension of the time limit for a cohabitant to make a claim against the estate, from the current six months to one year after the deceased's death.

The Scottish government rejected outright a proposal under which jointly held movable property (typically a bank account) would be determined by the law of the deceased's domicile at death, rather than the location of the property.

It also confirmed it has no plans to implement any part of the EU Succession Regulation 2012 into law.

The Scottish government's wider programme of succession law reform envisages the abolition of the traditional distinction between movable and immovable property. Part of the reform is to ensure that all children are treated equally when it comes to inheriting land, which is an important aspect of the Scottish government's plans for land reform and intervention against large landed estates. These and other more controversial issues will be consulted on this year.



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