The Succession (Scotland) Bill has passed its final stage in the Scottish Government. This is the first major reform to succession law for over 50 years. Many people consider current succession laws to be outdated and in pressing need of reform.
The Bill was shaped by reports from the Scottish Law Commission (an independent body that suggests ways to simplify, improve and update Scots law). These reports recommended that succession law needed to be made fairer and should be updated to reflect the way that Scottish society has changed over time. Areas such as intestate succession and cohabitation were identified as critical areas that needed to be addressed.
The Succession Scotland (Bill) does make steps towards meeting the Law Commission’s recommendations. The most notable change of the new Bill is that it will prevent divorced spouses making a claim upon their deceased partner’s estate unless a provision has been made for them in the will.
Other changes introduced by the Bill include establishing a process for the rectification of a will in certain circumstances; reforming the law relating to revival of a revoked will; changes to how survivorship operates where there is uncertainty as to the order of death and amending the law relating to forfeiture.
However, the Bill does not address the intestate laws that govern how an estate is split up when a person dies without a will or the rules of inheritance for cohabitants. These reforms have been put on hold until further consultations have been held.
Cohabitation
Cohabiting families are now the fastest growing type of family in the UK and numbers are expected to continue to rise. This has been coupled with marriage rates falling. This change in Scottish society lead to the introduction of cohabitants rights in the Family Law (Scotland) Act 2006. This made it possible for ex-cohabitants to make a claim against their former partner for things such as the costs of raising a child. The Act also made it possible for a cohabitant to make a claim against their partner’s estate if they died intestate. However, this involves the stress of going to court at an incredibly difficult time, and there is no guarantee the court will make any award at all.
For these reasons, it is advisable to create a cohabitation agreement that sets out what will happen to your property and personal possessions if your relationship breaks down.
Intestacy
With the vast majority of Scots dying without a will, reforms have been called for the laws of intestacy. It remains advisable to make a will. Writing a will allows you to select an executor you trust and gives you the opportunity to communicate what you want to happen to your property, money and possessions after you die.
Family Lawyers Edinburgh
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