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Divorce and The Succession (Scotland) Act 2016

Prior to the enactment of this new legislation, divorce had no effect upon a Scottish Will.  In framing the 2016 Act, the Scottish Law Commission took the view that a testator would not wish an ex-spouse or ex civil partner to inherit and thus now, unless a Will provides otherwise, any testamentary provision in their favour will be revoked on divorce, dissolution or annulment.

Without doubt therefore it will now be crucial for clients when entering into a separation agreement or are being divorced, to immediately revisit the content of their existing Wills.

The new legislation also provides for special destinations in favour of a civil partner or a spouse to be revoked on divorce, dissolution or annulment (s2).  Survivorship destinations commonly appear in the title to a property, usually between spouses, and provide that on the death of one, the title will automatically pass to the survivor.  It follows therefore that even if one party has a Will which leaves that heritable interest to a third party, such a term would be ineffective and the property would still transfer on death over to the survivor.   s2 also extends the provision from just heritable property to both heritable and moveable property.

If you require further information on the above or upon any of the other changes introduced by the Succession (Scotland) 2016 Act, please contact any member of our Private Client Team

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