Succession and Trusts

Introduction

The Succession (Scotland) Act 2016 became operational in March 2016 with a big chunk coming into effect eight months later in November the same year. In its enactment language, it is an Act of the Scottish Parliament that makes provision for succession related matters and for connected purposes. A plain reading of the Act points to a law in pursuit of modernizing and clarifying most of the technicalities associated with the Country’s laws of succession that have been in force since 1964. With this new Act on succession comes radical changes and major reforms in Scottish succession matters as will be discussed below, offering avenues for individuals seeking law dissertation help to delve into the intricate nuances of these legal reforms.

Changes and Reforms brought about by the Succession (Scottish) Act 2016.

This act has brought about far reaching changes and reforms in succession matters in Scotland in almost all the aspects of succession. Under the 1964 act, any will that made provisions for a spouse or a partner of the deceased would still be valid even after breakdown of such a relationship. The new act however, provides that a provision contained in a will in favor of a former partner or spouse is to be treated as having been

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1. Succession (Scotland) Act 2016
2. The Succession (Scotland) Act 1964


revoked when such a relationship ceases upon divorce unless the will states otherwise expressly. The new act further provides that if such a former spouse or partner was appointed an executor or a trustee, the same would fall when the partners divorce unless there is a contrary provision expressed in the will. A point to note is that the latter do not apply if such a former spouse or civil partner was appointed as a guardian to minor children.

On the Rectification of a will, the new act brought about the process of rectifying the deceased will by courts where on the face of the will as drafted, it would be clear to infer that the will does not reflect the wishes of the decease. In the 1964 law of succession act, there was no procedure or process of rectifying a will. This meant that unnoticed errors after the death of the testator could not be corrected. The reform brought about by this new act is that subject to and pursuant to certain parameters, a court of law can correct any will.

Upon the death of a beneficiary who predeceases the testator, the children of the beneficiary would automatically be entitled to inherit their legacy unless the contrary is so expressed by the will itself. This is a complete departure from the earlier provisions in the 1964 act, which automatically excluded the children of a beneficiary who predecease the testator. On the issue of survivorship, it was the provision of the 1964 succession act that where spouses die simultaneously, then the presumption was that

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3. Fyvie, E. S. (2016). The regulation of cohabitants in Scottish succession law (Doctoral dissertation, University of Glasgow).

the younger survived the elder spouse. Accordingly, the new succession act revokes this provision and currently, where spouses die simultaneously, none is presumed to have survived the other. This provision applies both to cases of testacy and intestacy. This new law however, does not change the law on establishing the standard of proof on whether there was the occurrence of deaths in a given order. As established in the case of Lamb v Lord Advocate, a proof on a balance of probabilities remains the civil standard.

On the issue of protection of trustees and executors, there is a new provision in the new succession act where trustees and executors are provided additional protection where such executors or trustees distribute the estate or assets of the deceased to a wrong beneficiary. This is provided that such a distribution to a wrong beneficiary was done in utmost good faith and that they conducted due diligence and reasonable ground work including enquiries to ascertain the right beneficiaries.

On the revocation of will, a will, which becomes revoked by another subsequently revives to original, in an instance where the subsequent will has been revoked in itself. This provision changes the law to the effect that the person reviving the will is not estopped from re-executing the new will in similar terms. Contrary to succession law

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4. ibid

under the 1964 Act, it is worth noting that the new legislation provides that a Will that is wholly or partly revoked, express or implied, by a subsequent Will.

When it comes to vesting of fee other than on death otherwise known as liferent, the new succession law provides that where a beneficiary is entitled to receiving, during their lifetime, the benefit associated with an asset and where such a legacy is accorded without time limitation, the same is said to be given in fee. The beneficiary is to join such benefit without disposing the subject asset. This is a complete departure from the earlier provisions of the 1964 act that made no provisions with regards to liferent.

The requirement of obtaining caution bond, which is more of insurance in cases where the deceased dies intestate has been revoked in the new succession law for small estates. According to the 1964 law of succession act, all executor’s dative, except spouses or partners whose prior rights purpose to exhaust an estate, were mandated as a matter of rule and procedure to find caution. This being a guarantee that the executor-dative would perform their duties without embezzling the estate of the deceased. This provision is accordingly removed and as such there is removed the requirement to get caution with regards to such small estates whose gross value, without deducting funeral and debts expenses, does not surpass £36,000.

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5. ombe, M. M. (2016). The Land Reform (Scotland) Act 2016: another answer to the Scottish land question. Juridical Review, 2016, 291-313.
6. Duncan, A. A. (2016). Kingship of the Scots, 842-1292: Succession and Independence. Edinburgh University Press.

With regards to gifts made in death contemplation, the new act comes in with radical changes and reforms. Generally, this has always been a gift that the donor makes in contemplation of his or her death, which is agreed that upon the death of the donor, the recipient keeps the gift. However, in an instance that the donor survives the condition, then it should be taken back to him or her; the donor reserves the right to change their mind at any point and can ask the recipient to return the gift; and if the recipient predeceases the donor, then the gift is returned to the donor.

This has always been the practice in Scotland and also true to most of common law countries. The new succession (Scotland) Act 2016 abolishes and revokes this special form of gift in contemplation of death as a distinct legal entity. In this regard, it does not stop persons from continuously making gifts on such stated conditions upon their wish and based on the willingness of the recipient. An individual can make a gift in contemplation of death in similar terms and conditions as stated above but the only change in the new succession law is that the above conditions are no longer automatic in nature.

On the very issue of protecting persons acquiring title for value without notice, section 17 of the 1964 act gives effect to a 1990 recommendation by bringing forth a more

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7. Maxwell, D. (2016). Disputed Property Rights: Article 1 Protocol No. 1 of the European Convention on Human Rights and the Land Reform (Scotland) Act 2016. European Law Review, 41.

elaborate and complete statutory protection, aiming at protecting individuals acquiring title in property in good faith. Moreover, this is also based on value; either directly or indirectly as provided by the executor or any person who acquired it directly from the executor. The new act provides for grounds, which cannot be relied on further as challenge. Put simply, those acquiring titles for value without notice from an executor are given more protection in the new act.

On the issue of Special destinations, which seeks to automatically, transfer to a survivor a property more so a house held jointly, such will be revoked on divorce of the spouses or civil partners. Further wills, which have revoked, are no longer capable of automatic revivor ship. With regards to the Parricide Act 1594 which automatically disinherited a person from the estate of the deceased with whom they killed to the effect that they could not inherit from a person they had killed; the new legislation repeals this act and the same is now covered under forfeiture. Forfeiture purposes to prevent killers from benefiting from the estate of the individual they have murdered. Based on the previous legislation, the murder is thus considered to have failed in surviving their victim. On the other hand, based on the new legislation, it is evident that this regulation is significantly maintained. However, the act further provides protection to individuals who have acquired a property directly and also in utmost good faith, and would otherwise, not be affected by the killer’s forfeiture.

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8. Gretton, G., & Steven, A. (2017). Property, Trusts and Succession. Bloomsbury Publishing.

The new legislation also brings about some radical changes on the issue of mourning expenses. The new regulations abolish the widow’s right, but not to widowers, and even the deceased family to claiming an allowance derived from the estate of the deceased to buy clothes for mourning purposes and provide an aliment for meeting the expenses until the estate is fully distributed. Of importance to note, this was and had been a common law right. However, with the new legislation, the same has now been abolished.

Testamentary requirement of survival for a given period has also been dealt with in a more succinct manner in the new legislation. A will can provide the duration within which a legacy or a residue would fall to a given person after the death of the testator. In most cases, there is evidence is not sufficient to suggest or point to the fact that the beneficiary survived as per a given time period. In such cases, the new legislation provides that the beneficiary ought to be presumed as not surviving to the said period where there is lack of enough evidence to prove otherwise.

Notably, another radical reform, whilst putting into consideration, equal property division in an instance of a beneficiary’s death is uncertainty. Clearly, section 10 handles situations where property can be passed to other individuals depending on the order in which their deaths occurred, yet the said property is not included as part of either estate. A good example of this is concerned with policy life. Notably, the law on succession Act 1964 failed to cover this situation and in this regard, it was provided in

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9. Clancy, M. P. (2018). Scots Law and Scottish Identity: A Legendary Tale. Scottish Affairs, 27(1), 73-81.

the new legislation 2016. Therefore, the new regulations denote that in such situations, property ought to be divided equally between various estates of individuals unless contrary provisions have been expressed otherwise.



Conclusion

Although the Succession (Scotland) Act 2016 is the first successor to The Succession (Scotland) Act 1964, the radical reforms cum changes contained in the 2016 Act without doubt, appear to only be the start or the beginning of full-scale reform of the law of succession in Scotland. It is common knowledge that most of us want to make sure that the wealth we have amassed over and during our lifetime goes to those who are very close to us and most deserving in all circumstances. A reading of the 1964 Act brings out the saddest bit with regards to how the law of succession operated then. The key changes this Act brings about by the new legislation are thus, timely and will go a long way in shaping modernizing the law of succession in Scotland.

The new Succession (Scotland) Act 2016 settles uncertainty associated with survivorship. This issue of Uncertainty of survivorship was initially dealt with under Section 31 of the 1964 law of succession Act in two situations in which two individuals die simultaneously, yet it is not possible knowing or establishing whoever survived the other. For succession purposes only, it is evident that civil partners and even spouses are deemed to have failed in surviving each other. On the other hand, in situations where the involved parties were neither married not in any kind of civil partnership, it is always the younger one who is considered to survive the other (elder). Notably, section 9 of the new legislation eradicated this rule, such that, it makes a significant provision when two individuals die simultaneously, none of them is presumed to survive the other. It is no longer the case the younger survived the elder. The 2016 regulation is clear to effect that none is deemed to have survived the other.

Section 9 of the 2016 Act pronounces itself unequivocally on this matter and further provides that where two persons have died simultaneously or under circumstances where it is impossible or uncertain who survived whom, neither of them is to be treated as having survived the other. This part applies both on testacy and intestacy. It also applies for all purposes that affects title or section of a given property. On this limb, Steven and Graham both died simultaneously and as such, it is not certain who died first. According to the will, Steven was to inherit the entire estate of his brother Graham failing of which Molly would. Accordingly, the said estate of Graham does not vest intestate and as such, Molly is entitled to inherit the entire estate according to the will which expressly provided so. In the absence of such a will, it would be difficult for Molly to inherit as it is uncertain who survived whom.

Subsection (2) provides that where a benefit is conferred on a third party on condition that another person died before the testator and that person dies in a common calamity

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10. ibid
11. ibid

with the testator, that condition will be treated as a condition that the person failed to survive the testator to enable the legacy to pass to the third party through the application of subsection (1) above. However, this section does not change the law on the standard of proof in establishing a particular order in which the deaths occurred. It was the holding in the case of Lamb v Lord Advocate and it noted that this was to be considered the only civil level of probabilities balance. As such, the order of deaths should be uncertain if it is possible proving a particular order on a probability balance.

The situation would be different if Molly was part of the group that died in the instant common calamity. In the instant case, Molly is a beneficiary and even though certain provisions of the Act may disinherit her on the basis that neither Steven nor Graham survived the other, the provisions of the will overrides statutory provisions on Section 10 of the Act and as such, she is entitled to inherit the estate of Graham.

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12. Lamb v Lord Advocate (1964 SC 110)
13. ibid

Bibliography

Statutes

Succession (Scotland) Act 2016

The Succession (Scotland) Act 1964

Case laws

Lamb v Lord Advocate (1964 SC 110)

Books/ Journals

Clancy, M. P. (2018). Scots Law and Scottish Identity: A Legendary Tale. Scottish Affairs, 27(1), 73-81.

Combe, M. M. (2016). The Land Reform (Scotland) Act 2016: another answer to the Scottish land question. Juridical Review, 2016, 291-313.

Duncan, A. A. (2016). Kingship of the Scots, 842-1292: Succession and Independence. Edinburgh University Press.

Fyvie, E. S. (2016). The regulation of cohabitants in Scottish succession law (Doctoral dissertation, University of Glasgow).

Gretton, G., & Steven, A. (2017). Property, Trusts and Succession. Bloomsbury Publishing.

Maxwell, D. (2016). Disputed Property Rights: Article 1 Protocol No. 1 of the European Convention on Human Rights and the Land Reform (Scotland) Act 2016. European Law Review, 41.

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