Death, Divorce and Defective Drafting
| Author | |
| DOI | 10.3366/elr.2018.0491 |
| Published date | 01 May 2018 |
| Date | 01 May 2018 |
| Pages | 307-313 |
The law of survivorship destinations is notoriously complex and ill-understood. In 1984, Professor Gretton stated that it was “33 years since Lord President Cooper denounced destinations in titles to heritage as anachronistic and productive of litigation (
To remind ourselves briefly of this difficult area of law, it is useful to summarise what a survivorship destination is before considering the way in which the law has been recently amended. A destination is a provision which regulates what happens to a particular right in the event of the death of the grantee. A special destination is one which is contained in the title to property. A survivorship destination is a type of special destination, which provides that title is held by “A and B and the survivor”. This is co-ownership of property, with each
The law of survivorship destinations has recently been amended by the 2016 Act. The 2016 Act was the first piece of primary legislation wholly dedicated to succession since 1964. Despite much of the Scottish law of succession being badly in need of reform and the numerous Scottish Law Commission publications on the topic, significant reform has not been forthcoming so far.
One of these technical aspects was the effect on wills and survivorship destinations of the termination of a marriage or civil partnership through divorce, dissolution or annulment. Before the 2016 Act, termination of a marriage or civil partnership did not revoke provisions contained in a pre-existing will in favour of the (now) ex-spouse or ex-civil partner unless it was clear that the provisions were conditional on the legatee remaining a spouse or civil partner.
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