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Survivorship Clauses

A survivorship clause is something which you can put in your title deeds which provides that on the death of the first proprietor, the surviving proprietor, often  a spouse or a civil partner, will automatically inherit the predeceasing proprietor’s interest in the property.

When was the last time you looked at your title deeds?  In most cases it might have been as far back as the day your Solicitor wrote to you to confirm completion of your purchase transaction. 

Do you even know whether your title contains a survivorship clause?  In some cases, clients know that their title contains a survivorship clause but may not fully understand what this means and why it might be something they need to re-think. 

It wasn’t that long ago that it was common practice that if two or more people, mainly married couples or civil partners, were buying a property together the title would be taken in joint names and to the survivor of them. Often, very little discussion was had about the ins and outs of what this meant.  Wind the clock on and a sea change has occurred -  survivorship clauses have not just become the exception rather than the norm but are in fact now widely discouraged.   

One of the main problems with traditionally worded survivorship clauses was that they often prevented unilateral evacuation, or in other words both or all parties to the deed in which the survivorship clause was created would require to consent to its removal, raising the possibility that if the parties fell out one of them could prevent the other(s) from revoking the provision.  Furthermore, survivorship clauses did not automatically cease on divorce (something which at least has been addressed by The Succession (Scotland) Act 2016).

In some cases, problems occur because, having signed a deed revoking the survivorship clause, often referred to a Evacuation of Special Destination, the proprietors are unaware that this then requires to be registered or recorded, depending on whether the property is land registered or not, before the death of any of the proprietors.

More recently, and following the advent of The Land Registration etc. (Scotland) Act 2012, other problems have occurred, even where both parties are still alive and have signed an Evacuation of Special Destination revoking the survivorship clause.   In some cases this is due to the fact the wording of the document is not compliant with the new Act. 

We often that following the first death of the proprietors of the property, the spouse, civil partner or family do not consult a Solicitor.  They simply deal with the bank accounts or other moveable assets that the deceased had and the first time a Solicitor is consulted might be a few years down the line, perhaps because the surviving spouse or civil partner needs residential nursing care.

So if this blog strikes a chord with you or you are not sure whether your title contains a survivorship clause or if you have a survivorship clause and simply want to understand what this means then please contact our Yvonne Burnham. Investing in  good legal advice now might just save you and your family a lot of time and money later on.   

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