Impact of commencement of the Succession (Scotland) Act 2016

31st October 2016

The Succession (Scotland) Act 2016 comes into forces on 1 November 2016. As a result, the Scottish Court and Tribunals Service (SCTS) has provided clarification of their expectations for additional documentary evidence required for applications for confirmation. This follows the enactment of Section 1 (Effect of divorce, dissolution or annulment on will) and Section 2 (Effect of divorce, dissolution or annulment on special destination) from 1 November 2016.

SCTS have stated, “we expect:

  • Where an application for confirmation nominate (including  an application in terms of Section 3 of the Executors (Scotland) Act 1900)  is received, that every declaration, other than those where a professional body is appointed as executor, will contain a statement setting out the relationship between the deceased and the applicant, and any other named executor, at the date of death.
  • Where any executor nominated  jointly ‘fails’, as a result of divorce, dissolution or annulment in terms of the Act,  the declaration will make an averment to that effect. 
  • Where the person seeking appointment as executor is not the spouse or civil partner of the deceased, and is relying on the marriage or partnership having been terminated to set up their right to the appointment, the declaration shall make an averment to that effect and the relevant extracts shall be produced as signed, docquetted and referred to therein.

The declaration with such a statement included should provide sufficient information to the sheriff clerk to satisfy the requirement to ensure the appropriate person is applying for confirmation.

Section 2 deals with the issue of special destinations, which will require the solicitor to consider whether or not the special destination still applies to the property following divorce, dissolution or annulment of any marriage or civil partnership of the deceased, and, if not, to enter the property as an item of the estate in the inventory, to be included in the total to be confirmed.”