The new Succession (Scotland) Act 2016, which came into force in April of this year (although many of the provisions are yet to come into effect), updated some of the laws of succession that have been in place in Scotland since the mid-1960s. Scots law has, to its credit, enacted reform where societal changes have demanded it (such as, most recently, the introduction of both The Civil Partnership Act 2004 and The Family Law (Scotland) Act 2006), yet the laws of succession have lagged behind.

The key reforms contained within the new Act include the following:

Court power to rectify a will

A new court process has been introduced by the Act that allows for a deceased’s will to be rectified where it is clear that, as drafted, it does not reflect the deceased’s wishes.

Inheritance following divorce

Should a former spouse or civil partner be named as a beneficiary or an executor in a will, they will be deemed to have predeceased the testator if the marriage or civil partnership was ended by divorce, dissolution or annulment unless the will specifically states otherwise. It should, however, be noted that these provisions do not apply in the case of the appointment of a former spouse or civil partner as a guardian to minor children under a deceased’s will.

Rules regarding the revocation of wills

If a will has been revoked (either in full or in part) by a subsequent will, that earlier will is not revived should the subsequent will be revoked at a later date.

In addition, there are numerous other changes of a more technical nature.

Although the Act is the first successor to The Succession (Scotland) Act 1964, the changes contained within the 2016 Act certainly appear to only be the start of full scale reform of the succession law in Scotland. The Scottish Government issued a consultation paper on the Law of Succession last year and it is expected that the results of this consultation will affect large-scale policy matters, particularly in relation to the question of “legal rights”. As things currently stand, the changes suggested will have a profound effect on all families but are likely to have a fundamental effect to those who own heritable property and, in particular, agricultural property.

Under the laws of succession in Scotland, there is a basic protection from disinheritance. Put simply, a surviving spouse or civil partner and the children and grandchildren of a deceased can claim part of a deceased’s estate, no matter what may have been written within a deceased’s will. Such a protection does not exist, for example, in England and Wales where a deceased has much wider testamentary freedom. As things currently stand, a claim of legal right relates only to a deceased’s moveable estate (that is, in effect, the part of the estate which is not buildings or land).

Last year’s consultation paper proposes that, rather than keep the current position of separating out a deceased person’s heritable and moveable estate for a legal rights claim, a new “fixed share” should be introduced, looking at the estate as a whole. The main purpose for this recommendation, so the paper tells us, is simplification.

In particular, introducing heritable property into the rules on forced succession will have implications for farm and estate owners. The concern is that including land and buildings into the property from which claims can be made could lead to a situation where a family farm or estate must either be sold or divided in such a way so as to make it unviable. It is proposed that executors will be given the power to apply to the court to be given permission to pay a “legal share” in instalments to help mitigate these effects but, arguably, this will not always improve the situation, particularly where an estate is asset rich but cash poor.

Although thought was given to exemptions for agricultural holdings in the Scottish Law, these were not recommended by the Scottish Legal Commission during its initial paper on the matter.

It should be stressed that such reforms remain at the post consultation stage but it does appear somewhat inevitable that a change to legal rights that will include heritable property as part of the calculation will become part of Scots law at some point in the future.