Scottish Will – Pre-decease of Beneficiary

ev51

A Will in Scotland leaves a property in equal shares to A and B (no mention of failing to their issue). B has predeceased the testator but has one child.

I can see that in England Section 33(1) of the Wills Act would mean B's child would be entitled to B's share of the property, but I can't find if that would be the same in Scotland.  My research so far suggests the value of B's half of the property would become part of the residue (which does mention failing to their issue) - Can anyone clarify the correct position?  BTW, I have looked through the Succession (Scotland) Act but still not sure!

theoretica

Is B a child or grandchild of the testator?  If so, I believe their share does go to their child unless the will specifically says otherwise.

https://www.legislation.gov.uk/asp/2016/7/section/6

ev51

B was a child of the testator.  I'm still not 100% sure as 6.1 (b) is not met (B was not alive when the will was executed), so Section 6 does not apply?

theoretica

I am pretty sure executed here means when the will was written and signed, not when it was put into action - confusing that the language gets used both ways.

GSS20

If a beneficiary predeceases the testator then the direct descendants inherit instead. 

user1977

theoretica said:

I am pretty sure executed here means when the will was written and signed, not when it was put into action - confusing that the language gets used both ways.

Yes, executing a Will (or any other deed) just means signing it, nothing to do with the executor's job.

buddy9

Section 6 of the Succession (Scotland) Act 2016 will apply only if the will is dated (executed) 1 November 2016 or later. If the will is earlier than this, then the potential for B’s issue to inherit falls within a previous rule of construction, the ‘conditio si institutus sine liberis decesserit’.

(I presume the property in question is heritage and legitim is not relevant)

ev51

The will was signed in 2010 and the property is heritage. The residuary will be split equally between A and B's child, but A would receive more overall if the half property value falls to residue is my understanding.

Keep_pedalling

ev51 said:

The will was signed in 2010 and the property is heritage. The residuary will be split equally between A and B's child, but A would receive more overall if the half property value falls to residue is my understanding.

If A is uncomfortable with that outcome they can always make a deed of variation giving B’s child more.

buddy9

ev51 said:

The will was signed in 2010 and the property is heritage. The residuary will be split equally between A and B's child, but A would receive more overall if the half property value falls to residue is my understanding.

On the basis of the information you give, the half property value would not fall into residue.

ev51

Thanks buddy9. Can you point me towards the section of the Act that covers this scenario?