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Succession (Scotland) Act 2016

Type Act of the Scottish Parliament

Publication 2016-03-03

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Testamentary documents and special destinations

Effect of divorce, dissolution or annulment on will

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(1) This section applies where—

(a) a person (“the testator”) by a will—

(i) confers a benefit or power of appointment on a person, or

(ii) appoints a person as a trustee or executor,

(b) that person (“P”) is, or becomes, the testator's spouse or civil partner,

(d) the testator then dies.

(2) P is to be treated as having died before the testator for the purposes of the will except for the purposes of any appointment of P or another person as a guardian.

(3) Subsection (2) does not apply if the will expressly provides that P is to—

(a) have the benefit or power of appointment, or

(b) be so appointed as a trustee or executor,

even if the marriage or civil partnership is terminated.

(4) For the purposes of this section, a marriage is terminated in the event of divorce or annulment and a civil partnership is terminated in the event of dissolution or annulment.

(5) In this section, references to “divorce”, “dissolution” and “annulment” are to divorce, dissolution or annulment—

(a) obtained from a court of civil jurisdiction in the United Kingdom, the Channel Islands or the Isle of Man, or

(b) if not so obtained, the validity of which is recognised in Scotland.

Effect of divorce, dissolution or annulment on special destination

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(1) This section applies where—

(a) property is held in the name of—

(i) a person (“A”) and A's spouse or civil partner (“B”) and the survivor of them,

(ii) A, B and another person or other persons and the survivor or survivors of them,

(iii) A with a special destination, on A's death, in favour of B,

(b) A and B's marriage or civil partnership is terminated, and

(2) In relation to the succession to A’s interest in the property mentioned in subsection (1)(a) on A's death, B is to be treated as having died before A.

(3) Subsection (2) does not apply if the document under which the property is held expressly provides that succession to the property is to be unaffected by A and B's marriage or civil partnership being terminated.

(4) If a person has in good faith and for value (whether by purchase or otherwise) acquired title to the property, that title is not to be challengeable on the ground that, by virtue of subsection (2), the property falls to A's estate.

(5) For the purposes of this section, a marriage is terminated in the event of divorce or annulment and a civil partnership is terminated in the event of dissolution or annulment.

(6) In this section, references to “divorce”, “dissolution” and “annulment” are to divorce, dissolution or annulment—

(a) obtained from a court of civil jurisdiction in the United Kingdom, the Channel Islands or the Isle of Man, or

(b) if not so obtained, the validity of which is recognised in Scotland.

Rectification of will

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(1) This section applies where—

(a) a person (“the testator”) dies domiciled in Scotland, leaving a will,

(b) the will was drafted not by the testator but on the testator's instructions,

(d) the court is satisfied that the will fails to express accurately what was instructed.

(2) The court may order that the will be rectified in such manner as it may specify so as to give effect to the testator's instructions.

(3) For the purposes of subsections (1)(d) and (2), the court may have regard to evidence extrinsic to the will.

(4) A will rectified by virtue of this section has effect as if so rectified when executed (but see sections 4(7) and 24).

(5) In this section, “the court” means—

(a) the Court of Session, or

(b) a relevant sheriff.

(6) In subsection (5)(b), “a relevant sheriff” means—

(a) a sheriff—

(i) of the sheriffdom in which the testator was habitually resident at the date of death, or

(ii) if subsection (7) applies, of the sheriffdom of Lothian and Borders sitting at Edinburgh, or

(b) a sheriff of the sheriffdom in which the testator's executor obtains confirmation.

(7) This subsection applies if at the date of death—

(a) the testator was not habitually resident in a particular part of Scotland, or

(b) the particular part of Scotland in which the testator was habitually resident is not known or is uncertain.

Rectification of will: supplementary

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(1) Subject to subsection (2), an application under section 3(1)(c) must be made within the period of 6 months commencing—

(a) in a case where confirmation is obtained in respect of the testator's estate, on the date of its being obtained, or

(b) in any other case, on the date of the testator's death.

(2) The court may, on cause shown, consider an application which is made outwith that period of 6 months.

(3) An order made by virtue of section 3(2) may be registered in—

(a) the Books of Council and Session, or

(b) the sheriff court books,

if the will to which the order relates is registered (either before or when the order is registered) in the books in question.

(4) Subsections (5) and (6) apply if the court is satisfied, on an application, that—

(a) execution by a person of a particular document is reasonably necessary to give effect to the rectified will, and

(b) the person—

(i) is refusing to execute the document, or

(ii) is unable, or otherwise failing, to execute the document.

(5) The court may make an order—

(a) dispensing with the execution of the document by the person, and

(b) directing a clerk of session, or as the case may be the sheriff clerk, to execute the document.

(6) A document executed by a clerk of session or the sheriff clerk in accordance with an order under subsection (5) has the same force and effect as if it had been executed by the person.

(7) A trustee or executor is not personally liable for distributing property in good faith in accordance with a will which, by virtue of section 3, is rectified after the distribution.

(8) In this section, “the court” has the same meaning as in section 3.

Revocation of will not to revive earlier revoked will

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(1) This section applies where—

(a) a will, or part of a will, is expressly or impliedly revoked by a subsequent will, and

(b) the subsequent will, or part of it, is revoked.

(2) The revocation of the subsequent will, or part of it, does not revive the earlier will or (as the case may be) the revoked part of the earlier will.

Death before legacy vests: entitlement of issue

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(1) This section applies where—

(a) a person (“the testator”) by a will bequeaths a legacy to—

(i) a direct descendant of the testator, or

(ii) more than one person where both or (as the case may be) all of those persons are direct descendants of the testator, and

(b) the person to whom the legacy is bequeathed or, if it is bequeathed to more than one person, a person to whom it is bequeathed—

(i) is alive when the will is executed, but

(ii) fails to survive the date of vesting of the legacy.

(2) Any issue of the deceased legatee alive when the legacy would, but for the legatee's death, have vested in the legatee is entitled to receive the legacy unless it is clear from the terms of the will that the testator intended otherwise.

(3) Without prejudice to the generality of subsection (2), it is to be regarded as clear from the terms of the will that the testator intended otherwise if the will provides expressly that the legacy is bequeathed—

(a) to the deceased legatee and another person (or other persons) and to the survivor (or survivors) of them, or

(b) to the deceased legatee, whom failing to another person (or other persons).

(4) Where the legacy is bequeathed to more than one direct descendant, the share of it which the deceased legatee's issue is entitled to receive is the share which the deceased legatee would have received if alive.

(5) Any distribution made by virtue of this section between or among two or more of the deceased legatee's issue is to be made in the same way as if it were a distribution between or among them of the whole or part of an intestate estate.

(6) In this section—

“intestate estate” means an estate, or any part of an estate, which is not disposed of by will,

“issue” means issue however remote.

Liferent: vesting of fee other than on death

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(1) This section applies where a liferent terminates other than on the death of the liferenter.

(2) If the fee has not vested in the fiar by the date of termination of the liferent, the fee vests in the fiar on that date unless—

(a) the document creating the liferent expressly provides otherwise, or

(b) there is an obligation requiring otherwise.

Destinations in wills and certain trusts: conditional institution

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(1) This section applies where—

(a) a destination of property in favour of a person (“A”) whom failing another person (“B”) is contained in a will or in a trust taking effect during the lifetime of the truster, and

(b) the property vests in A.

(2) B loses all rights to the property under the destination unless—

(a) the will or trust expressly provides otherwise, or

(b) it is clear from the terms of the will or trust that the testator or truster intended otherwise.

Survivorship

Uncertainty of survivorship treated as failure to survive

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(1) Where two persons die simultaneously or in circumstances in which it is uncertain who survived whom, each is to be treated as having failed to survive the other for all purposes affecting title or succession to property.

(2) Where a person mentioned in subsection (1) (“the testator”) by a will confers a benefit on a person on the condition that the other person mentioned in subsection (1) dies before the testator, the condition that the person dies before the testator (however it is expressed) is to be read as a condition that the person fails to survive the testator.

(3) This section is subject to section 10.

Equal division of property if order of beneficiaries’ deaths uncertain

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(1) This section applies, instead of section 9, for the purposes of determining rights of succession or title to property where—

(a) property is to pass, or be transferred, to—

(i) the estate of whichever member of a group of persons dies first (or the estates of whichever members die first),

(ii) whichever member of a group of persons survives the other members (or whichever members survive the other members), or

(iii) the members of a group of persons equally or the survivor (or survivors) of them,

(b) two (or more) of the members of the group die simultaneously or in circumstances in which the order of death is uncertain,

(c) had the deaths not been simultaneous or (as the case may be) had the order of death been certain, the property would have passed, or been transferred, to one (or more) of the persons mentioned in paragraph (b), and

(d) apart from this section, no provision has been made to deal with that situation.

(2) The property is to be divided equally between (or among) the estates of the persons mentioned in subsection (1)(b).

(3) For the purposes of this section, a “group of persons” may consist of two persons or more than two persons.

(4) This section does not apply if the property is to pass under a will and the persons mentioned in subsection (1)(b) and the testator die simultaneously or in circumstances in which the order of death is uncertain.

Testamentary requirement of survival for a particular period

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Where—

(a) a provision in a will requires that a person survives the testator for a specified period in order to receive a benefit under the will, and

(b) the person survives the testator but dies in circumstances in which it is uncertain whether the person survived for the specified period,

the person is to be treated as having failed to survive the testator for the specified period.

Forfeiture

Person forfeiting to be treated as having failed to survive victim

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(1) This section applies where, under the forfeiture rule, a person (“the offender”) has forfeited—

(a) rights of succession to the estate of the deceased,

(b) a beneficial interest in trust property which (but for the forfeiture) the offender would have acquired in consequence of the deceased's death,

(c) title to property which (but for the forfeiture) the offender would have acquired in consequence of the deceased's death by virtue of a special destination.

(2) In subsection (1)(b), “trust property” means property which, before the deceased's death, was held in trust for any person.

(3) The offender is to be treated as having died before the deceased—

(a) for the purposes of the rights of succession to the deceased's estate,

(b) in relation to the beneficial interest mentioned in subsection (1)(b),

(as the case may be).

(4) For the avoidance of doubt, references in this section to rights of succession to the estate of the deceased include references to—

(a) a claim to jus relicti, jus relictae or legitim out of that estate,

(b) an entitlement from that estate conferred by section 8 or 9 of the Succession (Scotland) Act 1964.

(5) In this section, “the deceased” means the person as a result of whose death the forfeiture arose.

Protection for persons acquiring in good faith and for value

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(1) This section applies where a person acquires title to property in good faith and for value (whether by purchase or otherwise).

(2) The title is not challengeable on the ground that it was acquired (directly or indirectly) from a person who in relation to the property has incurred forfeiture under the forfeiture rule.

Power of sheriff to order sheriff clerk to execute document

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(1) This section applies where a relevant sheriff is satisfied, on an application, that—

(a) execution by a person of a particular document is reasonably necessary to give effect to a forfeiture under the forfeiture rule, and

(b) the person—

(i) is refusing to execute the document, or

(ii) is unable, or otherwise failing, to execute the document.

(2) The sheriff may make an order—

(a) dispensing with the execution of the document by the person, and

(b) directing the sheriff clerk to execute the document.

(3) A document executed by the sheriff clerk in accordance with an order under subsection (2) has the same force and effect as if it had been executed by the person.

(4) In subsection (1), “a relevant sheriff” means—

(a) if the deceased died domiciled in Scotland, a sheriff—

(i) of the sheriffdom in which the deceased was habitually resident at the date of death, or

(ii) if subsection (5) applies, of the sheriffdom of Lothian and Borders sitting at Edinburgh,

(b) if the deceased died domiciled other than in Scotland but at the date of death owned immoveable property situated in Scotland, a sheriff of the sheriffdom in which the immoveable property is situated,

(5) This subsection applies if at the date of death—

(a) the deceased was not habitually resident in a particular part of Scotland, or

(b) the particular part of Scotland in which the deceased was habitually resident is not known or is uncertain.

(6) In this section, “the deceased” means the person as a result of whose death the forfeiture arose.

Total relief from forfeiture rule

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(1) Section 2 of the Forfeiture Act 1982 is amended as follows.

(2) In subsection (1), after “modifying” insert “ or excluding ”.

(3) In subsection (2)—

(a) after “modifying” insert “ or excluding ”,

(b) after “modified” insert “ or excluded ”.

(4) In subsection (3), after “modifying” insert “ or excluding ”.

(5) In subsection (5)—

(a) after “modify” insert “ or exclude ”,

(b) in paragraph (a), for “(but not all)” substitute “ or all ”,

(6) In subsection (6), after “section” insert “ modifying the effect of the forfeiture rule ”.

Time limit for applying for relief from forfeiture rule

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(1) Section 2 of the Forfeiture Act 1982 is amended as follows.

(2) In subsection (3), for “period of three months beginning with his conviction” substitute “ relevant period ”.

(3) After subsection (3), insert—

(3A) In subsection (3) above, the “relevant period” is the period of 6 months beginning with— (a) the end of the period allowed for bringing an appeal against the conviction, or (b) if such an appeal is brought, the conclusion of proceedings on the appeal.

Repeal of the Parricide Act

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(1) The Parricide Act 1594 is repealed.

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