Further succession proposals for Scotland may cause greater impact for those intestate

Further proposed changes to Scottish succession law may mean Scots face even greater pressure in considering how their wealth is passed on following death.

The new law, which comes into force in November 2016, will mean dissolution or divorce from a spouse automatically revokes any provision in a will for the respective ex-partner unless it expressly states otherwise.

Additional to the Succession (Scotland) Act 2016 are proposals from the Scottish Law Commission (SLC) which suggest a far greater number of people could be affected by the two-stage reform. These include rules relating to children’s rights, division of estate where a partner dies intestate, as well as introduction of new rights for unmarried cohabitees.

The 2011 Scottish census showed 237,000 unmarried couples cohabiting. Rights for such individuals on separation and death—although given by the Family Law (Scotland) Act 2006—remain limited, with a cohabitant only being able to seek a share of their deceased partner’s estate through a financial application within sixth months if a will was not made.

Recommendations have been made by the SLC for extension of this period to a year and that ability to claim financial provision should be granted, even if a lack of will fails to indicate this. Such legal alterations may cause delay to the distribution of assets, as well as causing a rise in costs should the surviving partner bring a court action.

Legal rights in Scotland currently mean a testator is unable to disinherit a partner or their children and that such parties have an automatic claim to a share of the estate. This is regardless of whether specific provision has been made within the will. The SLC has suggested further change in regards to this protective mechanism in regards to relative disinheritance. In seeking to simplify the current position, the Commission propose replacing the notion of ‘legal rights’ with a more widely applicable ‘legal share’. Rather than simply including the moveable estate of the deceased, ‘legal share’ would apply to all property and therefore land and buildings.

Such assets are likely to be the most valuable commodities within the estate and thus may force a sale in order to satisfy a shares claim, if said changes are implemented. The SLC has, however, said possibility of paying in instalments through court application should be considered in order to curb such a situation.

Those with and without wills may be prompted by the proposed succession changes to re-examine their personal situations in order to ascertain that their current provisory plans best reflect their intentions following death.

As well as being absent from the Scottish Government’s 2016-17 legislative programme, the second stage of the reform is a continual and uncertain process. Likelihood of proposal implementation is however, only weakened marginally as expressed by solicitors Susanne Beveridge and Nicola Neal. The partner and Senior Solicitor at Edinburgh-based law firm Brodies LLP have stated the implementation of the SLC’s fresh proposals are highly anticipated.

“Cohabitants without a will should give serious consideration to having one drawn up to ensure that their wishes are exercised following their death.”


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