Comment: You'll need to look at your will again after new legislation

DIVORCE changes validity of property inheritance, writes Michael Sheridan

Solicitors and their clients should take note that the Succession (Scotland) Act 2016 has now been passed, although it awaits ministerial action for it to be brought into operation.

This Act will alter the meaning and significance of many, if not most, of the wills held in offices by solicitors throughout Scotland. In most cases, the changes may well be acceptable and even welcome but, nevertheless, the testamentary intention of the client is altered without the client having had any say in the alteration.

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The main alteration is that any legacies or appointments as executors in favour of spouses or civil partners will be null and void in the event of divorce or dissolution taking place before the death of the testator who wrote the will.

That is, unless the will expressly states that the legacy or appointment should proceed even if such divorce or dissolution takes place.

Of course, no wills are likely to contain that latter condition because it was unnecessary until the passing of the new Act. This change reflects the position that has long been the law in England and Wales.

The same principle operates with house titles and other properties held in joint names. Where a couple who are a married or in civil partnership purchase a house, the ownership title is often written subject to the condition that, on the death of either party, the house becomes the sole property of the survivor.

That condition would be effective even if the deceased person had left a will leaving his or her share of the property to someone else. That has been the law in Scotland for centuries.

Now, however, under the new Act, the divorce or dissolution of civil partnership will render such a title condition null and void. That is, again, unless the title condition has been written specifically to the effect that it should apply even if such divorce or dissolution takes place.

Again, no current titles will contain that provision because it has been unnecessary until the passing of the new Act.

Will the Act apply to all wills and title deeds presently in existence or only to those written after the coming into operation of the Act? The former case would imply a retrospective effect which may be regarded as contrary to legislative principle. However, the latter interpretation would significantly postpone the operation of the Act. It would also create an artificial distinction between the law applicable from one case to another.

The Act does specify that one particular section shall apply only to cases which take place after the Act comes into force. However, no such provision is made in respect of the other cases referred to above. That implies that the Act will have a general application to all wills and title deeds, whether written before or after the coming into force of the Act.

If this conclusion is correct, does it mean that solicitors holding wills for clients should now inform their clients that the meaning and effect their wills or title deeds will be changed ?

Should clients be offered the opportunity to re-write their wills or title deeds to take into account the effect of the new Act? These are issues which we need to resolve before the Act comes into effect.

The Act also abolishes the Parricide Act 1594. That Act provided that “quatsumeuir he be that has slayne ……his father or mother……salbe disheresit in all tyme heirefter …”.

However, fathers and mothers need not worry about the removal of this disincentive for their children to murder them. The new Act sets out rules which are generally applicable to the forfeiture of inheritances in favour of persons who have killed the person whose death gives rise to the inheritance.

The Act contains other important changes. This note simply underlines some of the main provisions of the Succession (Scotland) Act 2016 but may serve as a reminder to practitioners that the Act has now been passed and its terms need study and reflection.

• Michael Sheridan is Secretary of the Scottish Law Agents Society