Expert warns to check wills following succession law overhaul

Scots lawyers are urging people to check their wills as the law of succession saw its most significant overhaul in 50 years this week.

According to Murray Etherington of Thorntons, some commentators view the reforms as a “tidying up exercise” – but he has cautioned this is not the case and the changes are “fundamental”.

As the terms of the Succession (Scotland) Act 2016 come fully into force, it marks the first stage in a series of major changes, with a separate Succession Act expected to be presented to the Scottish Parliament next year.

Mr Etherington, head of Thorntons’ private client department, said: “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.”

He said the legislation affects four key areas – wills after divorce, dissolution and annulment; sorting out mistakes; revoking old wills; and situations where family members die together.

Previously, if you made a will in favour of a spouse / civil partner or appointed them as executor, and the relationship later ended, the terms of the will still applied – meaning an “ex” could inherit, or be in charge of distributing, your assets.

Under the new rules, any appointment of your ex as executor, or bequest to them made before divorce/dissolution/annulment will automatically have no effect unless you state otherwise.

Mr Etherington said: “Some may not want an ex to inherit or distribute assets but may not have got round to re-writing 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.”

Roles for revoking old wills have also changed. There are often instances where people write a will, then later write a new will, cancelling the old one – but if the new will was cancelled the old one would automatically come back into force unless it had been destroyed.

Now, old wills which are revoked cannot be revived.

Mr Etherington continued: “When old wills came back into force it was most likely not what was intended and could lead to unfortunate and unexpected consequences so this change is also welcomed. 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 depends on the terms of a law from 1964!

“That law can cause upsetting results such as leaving your spouse with little, and leaving young children with huge sums they receive at 16. The legal process involved is also costly and time consuming.”

Other changes to take effect include rules around situations where groups of people (often close relatives) die together. Establishing the order of people’s deaths could significantly affect distribution of assets – however the rules have now been simplified so that (except in limited circumstances) the law will deem that they died simultaneously and no-one survives the other.

Furthermore the law will now allow terms of a will to be corrected, in limited circumstances, where there is a mistake – such a as a key beneficiary’s name being wrongly stated. This change is a useful provision for the correction of errors, but will not let unhappy individuals challenge its terms.

Mr Etherington added: “These are the most significant changes to succession legislation in half a decade and for the most part will be welcomed as positive change.

“But in light of the reforms, it is essential that anyone with a will considers whether they still reflect your wishes and intentions.”