Change in Scottish legislation could impact validity of Wills

Earlier this year the Scottish Parliament passed the final stage of the Succession (Scotland) Act 2016.  The Act means that any ex-spouse or civil partner will no longer be able to inherit under a Will following a divorce or dissolution, unless the Will makes specific provision for them.

This will also apply to house titles and properties held in joint names. Previously, the ownership title would usually have been written subject to the condition that, on the death of either party, the house became the sole property of the survivor. This would be effective even if the deceased had left a Will leaving their share of the property to someone else. Under the new Act, a divorce or dissolution will mean this is now null and void.

Changes to these conditions could mean a number of Wills in Scotland are invalid, unless it has been expressly written that it should apply even if such divorce or dissolution takes place. However, it is unlikely that current Wills in Scotland will include this condition as previously there was no need to do so.

Tom Curran, Chief Executive at Kings Court Trust said: “Given the potential impact the new legislation could have on the validity of Wills, this is a good time for Scottish clients to review their documents. It is this sort of change that often invalidates Wills and results in an increase in the number of estates affected by disagreements between beneficiaries; this can delay the distribution of the estate and obviously cause great stress to the family members at an already difficult time.  Therefore, ensuring that your Will is up to date and clearly written is vitally important to ensure that your estate is dealt with as smoothly as possible.”

Although the Succession (Scotland) Act 2016 has been passed it awaits ministerial action for it to be brought into operation.