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Succession

Succession

The law of succession governs how a person's property passes on his or her death. General Information about the current law and practical advice on bereavement is given in the Scottish Government publication 'What to do after a death in Scotland'. Hard copies of the publication can be obtained (free of charge) by calling 0131 244 3581.

Domestic Initiatives

To aid consideration of whether to uprate key financial thresholds within current succession law, the Scottish Government published a consultation paper: Succession Law in Scotland - A Review of the Financial Limits of Prior Rights and Confirmation to Small Estates which ran until 23 May 2011. A copy of each response received was published, along with a summary analysis. In December 2011 the Scottish Government introduced secondary legislation to uprate the thresholds with effect from 1 February 2012.

More fundamentally, the Scottish Law Commission (SLC) has reviewed the law of Succession, (Report No.215) with the aim of simplifying complex legislation and reflecting public expectations in 21st century Scotland. The Scottish Government is giving consideration to the SLC's report.

Work is being taken forward in two streams.

A consultation paper was published on 14 August 2014 seeking views on technical issues in the SCL Report relating to succession. The consultation closed on 7 November 2014. There were 22 responses. A summary of the responses, incorporating the Scottish Government response and the full text of the individual responses (where consent was given to publish) are available:

The Succession (Scotland) Bill was introduced on 17 June 2015.

The Bill includes specific provision to:

  • reform the effect of divorce, dissolution or annulment on a will or special destination; establish process for rectification of a will in certain circumstances and reform the law relating to revival of a revoked will;

  • close a number of jurisdictional gaps to ensure that Scottish courts have jurisdiction where the applicable law is Scots law;

  • reform how survivorship should operate in Scotland where there is uncertainty as to the order of death;

  • reform the law relating to forfeiture;

  • reform estate administration by putting in place protections for trustees and executors in certain circumstances and for persons acquiring title in good faith; and

  • reform other matters which include the abolition of donations mortis causa[1] and the right to claim the expense of mournings.

[1] A gift made in contemplation of death and which may be revoked by the granter

The Scottish Government has prepared a Business and Regulatory Impact Assessment and an Equality Impact Assessment for the Bill.

Succession (Scotland) Act 2016 (Royal Assent was granted 3 March 2016)

A second consultation on the SLC's proposed new scheme for intestacy, protection from disinheritance under a will and extended rights for cohabitants was published on 26 June 2015 and closed on 18 September 2015.

EU Initiatives

The European Commission is progressing work on succession on cross border estates. The Scottish Government worked with the Ministry of Justice to develop a joined-up UK position in relation to the EU proposal, and did so in light of responses to the consultation exercise which which ran until 2 December. An announcement was made on 16 December 2009 by the then Secretary of State for Justice, Mr Jack Straw MP stating the intention not to opt in to European Commission's proposed regulation on succession and wills. The full statement can be viewed via the UK Parliament website.