Impact of divorce on succession

The Succession (Scotland) Act 2016:
The law of succession does not change often in Scotland. Most of the substantive rules go back to 1964, and other aspects go back further. A program of reform is however now on the horizon, with the effects of the first stage beginning to show. The Succession (Scotland) Act 2016 is concerned with fairly brief technical points, while later legislation will introduce a more broad-ranging overhaul of the laws of intestacy and protection against disinheritance.

The 2016 Act has interesting things to say about the laws of common calamity and the procedure for judicial rectification of a defective Will, however this article will focus on two areas covered by the Act that practitioners will encounter most often: the impact of a client’s divorce, and the commissary procedure in handling estates.

Effect of divorce etc.
For deaths on or after 1 November 2016, the deceased person’s ex-spouse or civil partner will be treated as having predeceased for all purposes of the Will, save for any nomination of them as a guardian for another person. Prior to the Act, divorce had no such effect.

This seems useful for the simple reason that it brings the law in line with what the majority of clients thought was already the case, echoing the longstanding position in England. This has closed a dangerous trap for clients who “Googled” the problem, only to be given false assurance by the English position, and thus omitted to take action to amend their Will – sometimes with disastrous effect.

However the Act is not a cure-all. It will not affect the appointment of former “in-laws” or step-relations as named executors or beneficiaries, and it does not account for the host of circumstantial changes that a client will experience following divorce. The need for the Will to be reviewed is still critical – it is just that the worst case scenario has been slightly improved.

The Act also contains a similar rule in relation to survivorship destinations within assets of any kind. Again, the surviving ex-spouse or civil partner will be treated as having predeceased, and thus they will not stand to receive the deceased’s interest in that asset.

However unlikely it may be, there is also the facility for parties to opt-out of these provisions by including wording to provide that subsequent divorce is to have no effect on e.g. the appointment of an executor or the effect of a survivorship destination.

Commissary Practice
The C1 Declaration must demonstrate that the appropriate person is applying for Confirmation. How does one document the effect that the Act has had on the executors under the Will? And perhaps more confusingly, how does one show that the Act has not affected the executors?
There is an ongoing dialogue between leading practitioners and the Scottish Court Service on the matter. For now, the position is as follows:

  • Where executors are related to the deceased, the degree of that relationship should be narrated;
  • Where an executor has “failed” by virtue of divorce etc., this must be narrated; and
  • Where the executors seeking Confirmation are relying on a prior executor having “failed” in terms of the Act, they must narrate this fact and produce the relevant decree of divorce etc.

This leaves open the question of how to document an executor who was not related to the deceased. In order to cover all logical possibilities created by the Act, it would be necessary to state that the executor was never married to or in a civil partnership with the deceased, and thus their appointment was not vitiated by subsequent divorce. This initially seems an odd statement particularly if the executor was the deceased’s solicitor, however stranger things have happened! Unless the executor is a limited company, the possibility of marriage and divorce requires to be covered.

The Act also marks the first change in relation to procedures in intestate estates for the appointment of executors dative, and it paves the way for more changes in future. Firstly, the requirement for a Bond of Caution has been removed from “small estates” (less than £36,000) providing the Sheriff Clerk’s office is assisting with the preparation of the Inventory form. All other intestate estates still require Bonds of Caution. The Act allows the Scottish Ministers to make regulations changing the rules even more: whether by changing the threshold for estates requiring Bonds of Caution, abolishing Bonds of Caution completely, or by devising new rules setting requirements before an individual can be appointed as executor dative.

There is potential for Scottish succession laws to change more in the next few years than in any time for a generation, so practitioners would do well to keep pace in these early stages.

For more information and advice about Wills please contact our Private Client team at Blackadders.

Laura McDowall, Private Client


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