New succession law passed in Scotland

February 23, 2024

Legislation updating Scottish succession law received Royal Assent on 30th January 2024. The Trusts and Succession (Scotland) Act 2024 is also the first main revision to trust law in Scotland for over a century.

Of particular interest to legacy managers in terms of succession law is a clarifying change in relation to special destinations. A special destination is a way of ensuring that property passes between joint owners on death. Where title deeds to a property contain a special destination, the effect is the same as for joint tenants under English law: on a death, the share of the deceased would automatically pass to the other owner or owners, overriding the deceased’s will.

The Scottish Parliament has provided in a series of prior laws that a divorce, dissolution or annulment should automatically cancel a special destination so that the deceased’s will applies. The 2024 Act now clarifies a small ambiguity around those earlier changes to ensure that this happens effectively. These changes help to ensure that a will (which may of course include charitable legacies) will not be defeated by a still-existing special destination lurking in the deceased’s title deeds. This change takes effect from 30th April 2024.

The 2024 Act also updates Scottish trust law extensively. Most of the provisions relating to trustees in the Act apply equally to executors. At present, the date when these provisions will come into force has not been announced. The key points of interest include:

  • All executors must be given notice of decisions to be made and must be given an opportunity to express an opinion on the matter, otherwise the executors’ decision will be invalid (although an executor omitted from the process can later approve retrospectively a decision which was invalidly taken);
  • An executor who has a personal interest in a decision, or who is incapable or untraceable, is to be excluded from a decision-making process, unless the will provides otherwise, or where the other executors consent to their acting, or where it is clear that the testator must have known there would be a personal interest and still wanted the executor to act;
  • Executors will be under a duty to provide information requested by a beneficiary under a will, unless the executors consider it to be inappropriate to make the disclosure. Executors will be able to ask the court for guidance on what they should or should not disclose;
  • Executors will be subject to a higher duty of care than at present, if the executor in question provides professional services in relation to the managing of executries (for example, a solicitor). In such a case, the standard will be the skill, care and diligence reasonable to expect from a member of the profession in question.

These long-awaited changes to Scottish trust law ought to improve the openness and transparency of executors’ actions, and should begin to instil better behaviours in terms of responsibilities towards beneficiaries and in how decisions are taken properly and validly.

Gavin McEwan is a Partner and Head of Charities at Turcan Connell


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