As modern family structures become more diverse, the laws guiding succession can sometimes cause more issues than they solve. This is no great surprise considering the last update to these laws came in 1964.
The Succession (Scotland) Act was created to try and address some of these issues. This Act received Royal Assent earlier this year and contains many changes intended to modernise succession law and make sure it is “up to date, fairer, clearer and more consistent”.
For example, prior to this update if you were divorced but had not changed your Will to reflect this, upon your death your ex-partner would still inherit from your estate, no matter how long you had been separated.
The Act is being introduced in two parts, with only Part 1 currently in effect. Part 2 is still being consulted upon, but will cover aspects including what happens when someone dies without a Will, and how much a spouse, civil partner or child should be entitled to regardless of what a Will says. Although there is no set date for this second phase, it is expected it will be launched in 2017.
So what has changed so far?
There are 27 sections under the Act, however some of the most relevant changes are:
- Under the updates in the 2016 Act, an ex-spouse or civil partner will no longer be able to inherit from your estate if you were divorced or separated unless your Will makes specific provision for them
- The courts will have the power to rectify a Will, where it can be established that it does not reflect the intention of the person who died. However if the deceased has drafted their own Will, this will not be the case
- The rule which allowed an earlier Will to be used if a Will drafted at a later point is revoked, has been abolished
- Where a person who is set to inherit from an estate dies before the person who has written the Will, their provision will go to their surviving children once the owner of the estate dies – provided that the Will does not specifically state otherwise
- Provided that they have acted in good faith, there is now protection for executors, trustees and individuals involved in the administration of an estate in certain circumstances where there has been an error in the distribution of assets
These changes have been introduced to give those who don’t have an up-to-date Will, or indeed any Will at all, further protection. However there is never a one-size-fits-all solution.
The only way to truly ensure that your estate goes to the people you choose in the manner of your choosing is to get professional advice on all aspects of succession and estate planning for your Will.
If you would like to find out more about these updates to these laws and whether they will affect your Will, get in touch for a free Will review.