Produced in partnership with Jacqueline Leslie of Harper Macleod LLP.

This Practice Note examines the changes to the law of succession created by the Succession (Scotland) Act 2016 (S(S)A 2016). It provides information on each section of S(S)A 2016, and comments on its effect on the position of the law prior to its enactment.

Effect of divorce, dissolution or annulment on Will—S(S)A 2016, s 1

Where a marriage or civil partnership is terminated by divorce, dissolution or annulment, any benefit or power of appointment conferred by a testator upon the former spouse or civil partner, together with any appointment of such persons as executor or trustee, will be revoked.

References:
Succession (Scotland) Act 2016, s 1

For this section to apply, the deceased must have died after the divorce, dissolution or annulment has been obtained and after 1 November 2016.

References:
S(S)A 2016, s 1(1)(d)

This will be the case unless the Will expressly provides that the above entitlement or appointments are to have effect irrespective of the formal termination of the relationship.

References:
S(S)A 2016, s 1(3)(a), (b)

The revocation is achieved through treating the ex-spouse or civil partner as having died before the testator for the purposes of the Will.

References:
S(S)A 2016, s 1(2)

Notably, this legal fiction does not apply where a former spouse/civil partner has been appointed as a guardian under the terms of the Will. Such provisions will have effect despite subsequent legal termination of the relationship.

References:
S(S)A 2016, s 1(2)

References to divorce, dissolution and annulment are to decrees obtained from a court of civil jurisdiction in the UK, Channel

 

 

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