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Scottish Succession Bill extinguishes ex-spouses' claims on estate

The Succession (Scotland) Bill 2016 has had its third reading in the Scottish Parliament. 
Among other provisions, the Bill excludes an ex-spouse or civil partner from inheriting under a will that was made before the divorce or dissolution. It also cancels the appointment of the former spouse as trustee, executor or guardian. The only exception is where the deceased's will explicitly states otherwise.

Similarly, a will provision making a 'special destination' of property in favour of a former spouse will be revoked on divorce. This applies not only to heritable property but also to moveable property such as bank accounts and investments held in joint names.
The Bill also:

  • establishes a process for the rectification of a will in certain circumstances;
  • removes the requirement for executors to obtain a bond of caution where the estate is uncontentious and small;
  • abolishes the doctrine of donatio mortis causa (gifts in prospect of death), which has proved problematic in English cases;
  • protects trustees and executors and people acquiring title against liability for wrong distributions, provided they acted in good faith;
  • clarifies that the Scottish courts can rectify a will that does not reflect the testator's intentions, under certain conditions. This resolves the uncertainty in Scottish law created by the UK Supreme Court's decision in Marley v Rawlings;
  • narrows the per stirpes rule (where a legatee dies before receiving that legacy) to apply only to the testator's direct descendants; and
  • modifies the survivorship rule to state that, where both spouses die in the same accident, neither is treated as surviving the other.

This is the first significant reform of Scottish succession law in more than 50 years, but an even more wide-ranging programme is on the way. This will bring significant changes to the law of intestacy, disinheritance and cohabitation, and remove the distinction between heritable and moveable property.

Sources

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