The last major change to Scots Succession law took place in 1964, but the world was a different place back then.
Despite general agreement that changes were necessary, successive Westminster and Scottish parliaments shied away from making changes, even after the Scottish Law Commission produced two major reports recommending that this be done.
In the meantime Scottish Law fell even more behind other areas of the UK. Having to deal with various estates on the basis of an outmoded law could be very frustrating and emotionally challenging for all concerned.
We have had to explain to bereaved and upset clients that estranged children who never went to visit their dying father were still entitled to take a share of his estate. Explaining to a grieving widow the often unpalatable truth that her young children were going to inherit most of what she and her husband had built up together, whether they wanted to or not, was also an unpleasant task facing legal representatives.
In 2014 the Scottish Government announced that they wanted to consult on proposed changes to Succession Law in Scotland, albeit that they were looking at some of the more peripheral issues. The Wealth Protection Team in Edinburgh submitted a response to the First Scottish Government Consultation on these less controversial changes (one of only three law firms to do so).
Just how overdue this overhaul and modernisation of the law was can be judged by the fact that one of the changes proposed abolishing the Parricide Act of 1594. June 2015 saw the publication of the Succession (Scotland) Bill in the Scottish Parliament. This takes forward most of the changes which were discussed, the main ones being:
- Ending the appointment of your spouse or civil partner as an Executor, Trustee or Guardian if you divorce or the marriage is annulled. However, a Will can still specifically provide that this will not happen if that is what you want.
- When you divorce, the practice of putting a clause in your house title deeds which says that on the death of one ex-partner, title automatically passes to the survivor, will now end.
- People will now be able to go to court to correct a Will made by someone else which is wrong.
- It will no longer be possible for a previous Will to 'come back to life' if any subsequent Will is revoked.
- Where two people die at the same time and it is not possible to say who died last, the current rule is that the younger survived the elder. The new rule will be that neither is to be treated as having survived the other, unless there is proof of time of death.
After examination by Committee, which took evidence on several of the issues, the Bill was passed by the Scottish parliament on 28 January 2016 and received Royal Assent on 03 March 2016. A small number of technical changes are now in force but the rest will come into effect when the Scottish Government decides to do so and as yet there no sign of this happening.
At about the same time as it published the new Bill, the Scottish Government also issued a second consultation paper on the more complex issues, especially in relation to what happens when someone dies without a Will, and how much, if anything of an estate should a spouse, civil partner or child get regardless of what the Will says.
After input from various teams in the Private Client Practice Group, the Wealth Protection team in Edinburgh submitted a response to this and we await the results of the consultation with great interest.
One of the more controversial proposals will change how much family members can claim from an estate even when where there is a Will. This has already worried the agricultural community north of the border in particular. They fear that, should this become law, some family farms may have to be split up and therefore will no longer be viable. This could have a considerable impact in the agricultural sector in the future, at a time when land reform is also a hotly debated topic.
The Scottish Government is unlikely decide what they will do until 2017, but most observers and commentators hope that they will grasp the nettle and bring in new laws which achieve the aim of being clear, fair and up to date.
There will always be cases where such general rules do not produce a fair result for everybody concerned, but most are agreed that the law should be changed to reflect how we all live our lives today. Without doubt many people will be affected if and when these changes in law come to pass. However, when that happens it is not just individuals who should take note, but also businesses, companies, charities and other corporate bodies.