Succession law changes not just "tidying up", Thorntons warns

Changes to Scotland's law relating to wills in the Succession (Scotland) Act 2016 are not just "tidying up" reforms but have some fundamental effects, according to a Dundee solicitor.

Murray Etherington, head of Thorntons’ private client department, is urging people to check their wills as the Act, which came into force yesterday (1 November), makes some “fundamental” changes.

It also marks the first stage in a series of major changes, with a further Succession Act expected to be presented to the Scottish Parliament next year.

The legislation affects four main areas: wills after divorce, dissolution and annulment; sorting out mistakes; revoking old wills; and situations where family members die together.

Whereas under the former law, a bequest to a spouse or civil partner, or appointing them as executor, survived the ending of the relationship, now a divorce, dissolution or annulment automatically means that the provision has no effect unless the will states otherwise.

Mr Etherington commented: “Some may not want an ex to inherit or distribute assets but may not have got round to rewriting their will; in these circumstances, it’s a welcome change. However if your split is amicable or you want your former partner to look after your children after you die, your current will may longer allow that to happen, so it’s important to be aware.”

Rules for revoking old wills have also changed. Old wills which are revoked can no longer be revived if the new will is in turn cancelled. The change is welcome, Mr Etherington says, because an old will coming back into force was most likely not what was intended and could lead to unfortunate and unexpected consequences. "But it also serves as a reminder of just how important it is to have a valid will because, without this, your estate will fall into intestacy and the ways your assets are distributed depend on the terms of a law from 1964" – with more costly legal processes in addition.

Other changes to take effect include rules where people die together in an accident. Now in most cases they will deemed to have died simultaneously, which could affect the distribution of their assets.

The terms of a will can also now be corrected, in limited circumstances, where there is a mistake such as a key beneficiary’s name being wrongly stated. 

Mr Etherington summed up: “This is much more than a tidying up exercise that deals with some technical points. It will have a significant impact and it is essential that people are aware of the implications, and that they review their wills accordingly.”