Differences between an English Will and a…

What are the key differences between a Scottish Will and a English Will ?

The legal requirements for creating a valid Will differ between England and Scotland. In England, a Will must be signed by the testator and two witnesses to be valid. In Scotland, only one witness is required, but the testator must sign every page of the Will to ensure its validity. Witnesses in Scotland must provide full identification, including their address and ideally their occupation. It is important to know which court will administer the estate, as the Will must comply with the legal requirements of the respective country. Witnesses can also be beneficiaries in Scotland, but the Law Society of Scotland prohibits solicitors from preparing testamentary writings that contain a bequest in favour of themselves or a connected person, subject to only certain exceptions.

If there is no Will, the laws governing the inheritance of the estate differ between Scotland and England. In Scots Law, spouses and children have an automatic entitlement to inherit part of the Testator's movable estate, regardless of whether there is a Will. In England, there are no such automatic safeguards for spouses and children.

Legal Rights and Prior Rights are unique to Scottish law, providing certain priorities to a deceased's spouse and/or children. Legal Rights are considered a debt against the estate and must be paid before any legacy or payment is made from the Will to a beneficiary. Marriage does not invalidate a previous Will in Scotland, unlike in England and Wales.

Adopted children have the same Legal Rights as biological children in Scotland, but they cannot make a Legal Rights claim against their biological parent's estate.

In conclusion, it is crucial to understand the differences in inheritance laws between England and Scotland and to comply with the legal requirements of the respective court to ensure the validity of the Will.

We Are Here to Help!

What does Prior Rights mean in Scotland ?

Prior Rights refer to someone who dies intestate, which means dying without a Will.

Before anyone else receives any money, the spouse or civil partner of the deceased person (if they have one) has certain Prior Rights. These rights include the right to the deceased person's dwelling house, providing the partner was resident in the house at the time of death. The wife or civil partner is entitled to the value of the house up to £473,000.

If the deceased owned a property they have the right to furniture worth up to £29,000, and the right to receive a specific amount of money. If the deceased person had surviving children, the spouse or civil partner is entitled to a lump sum of up to £50,000. If there are no surviving children, the lump sum entitlement is up to £89,000.

So, the maximum value of Prior Rights is therefore £552,000 if the deceased had children and £591,000 if they did not.

Please note if the value of the house is less than £473,000 the partner is not entitled to make it up to the maximum value of cash assets, on the other hand, if the value of the house exceeds £473,000 then they are entitled to receive the cash amount instead of the house itself.

Prior Right Claims

For many people, the spouse or civil partner is entitled to the deceased whole estate which means there is no provision for children, so Legal Rights are only applicable for children when the Prior Rights do not exhaust the entire estate.

We Are Here to Help!

What does Legal Rights mean in Scotland?

After fulfilling any Prior Rights obligations, any remaining funds will be distributed based on the ‘Legal Rights’ rules. Legal Rights are limited to the movable estate and are divided into three portions. Firstly, the surviving spouse is entitled to a half or a third, depending on whether the deceased has surviving children. Secondly, surviving children are entitled to a half or a third, depending on whether there is a surviving spouse or civil partner.

If there are multiple children, the amount is divided equally between them. Additionally, if a child has passed away, their own children can inherit in their place. The law does not differentiate between the parent's marital status or whether the child is adopted.

The final third or half, depending on whether there is a surviving spouse or children, is known as the ‘free estate’. The free estate is distributed according to a list outlined in the Succession (Scotland) Act 1964. The list prioritises children, followed by parents and siblings, siblings (if parents are not alive), spouses, uncles and aunts, grandparents, grandparents' siblings, and so on.

Legal Rights are also available to spouses or civil partners when there is a will in Scotland however it cannot be claimed alongside any entitlement under the Will.

Possible Additional claims for legal rights

If the Prior Right claim has not covered the total assets of the deceased the surviving partner would also be entitled to claim Legal Rights, The level of this claim depends on whether the deceased has children.

We Are Here to Help!

How do you decide whether Scots or English law will apply to your Will?

This is not always straightforward forward it will depend on where you are deemed to be 'domiciled' at the time of your death. This will be the country that you treat as your permanent home, or live in and have a significant connection with.

If you have foreign property and land this will be dealt with under the law of the country in which these assets are based. Moveable assets, on the other hand, will be dealt with by the court in which the person is domiciled, for example a Scottish bank account can still be governed by English courts where a person is domiciled in England.

We Are Here to Help!

Should I have a Scottish or an English Will?

This is a point that should be carefully considered and is best discussed with your solicitor. The answer is heavily dependent on individual circumstances, including where you will be living and where your assets are based. It is possible to put in place a Will which meets both the Scottish and English signing requirements and will, therefore, be accepted by courts in both Jurisdictions.

Is my English Will still valid in Scotland?"

The simple answer is generally "yes", however, if you are domiciled in Scotland, your entire Estate will be dealt with according to the laws of Scotland.

There is no reason why a Will which is valid in England will not also be valid in Scotland. However, on your death, it may need to be validated by a solicitor practising in the country where it was completed. When considering the validity of your Will in a different country there are a few things to consider

Your domicile is generally where your permanent residence is. Your domicile on the date of your death is the deciding factor for which country's Law is used when distributing your Estate. If you are domiciled in Scotland, your entire Estate will be dealt with according to the laws of Scotland.

If we consider the example of an English Will in Scotland; the Will can be followed so far as the Law of Scotland permits.

We Are Here to Help!

How much is the share that a spouse/civil partner or child can claim when someone dies in Scotland?

In the event the deceased’s left children then the surviving spouse or civil partner are entitled to one-third of the deceased’s moveable estate. If the deceased’s left no children or grandchildren then the spouse is entitled to one-half of the deceased’s moveable estate.

If multiple children or grandchildren are left by the deceased and there is a surviving spouse or civil partner then the children or grandchildren are entitled to a share of one-third of the deceased’s moveable estate. If there is no surviving spouse or civil partner then the children or grandchildren are entitled to a share of one-half of the deceased’s moveable estate.

We Are Here to Help!

What can a child inherit in Scottish and English Law

In Scotland, the position is very clear. Providing you have the capacity to make a Will, you can in theory disinherit your children by only leaving property in your Will and you can leave your heritable estate to whomsoever you please - no matter how unconnected you are considered to be to that person or charity.

However, all children in scotland have Legal Rights. Legal Rights entitle the children of a deceased individual to one-third of the deceased’s moveable estate where there is a surviving spouse or civil partner, or one-half, where there is not. A person’s moveable estate is essentially their assets apart from land and property such as a house or a flat.

There has long been a moral debate about whether or not a parent is obligated to provide for their children. Regardless of your opinion on the matter, at least the position in Scotland remains clear.

In England, there is uncertainty as the courts can award “reasonable provision” and who is a “valid” beneficiary if a child makes a claim on the estate where children are written out the Will.

We Are Here to Help!

In Scotland how do you deal with an Intestate Estate?

First, you need to petition the court to have an executor-dative appointed to deal with the estate and it's good practice to apply for a bond of caution. This in simple terms is an insurance policy which safeguards the executor from any claims in the estate. It Is required to have the bond of caution for all estates over £36,000 where the spouse or civil partner does not take the entire estate by virtue of their Prior Rights.

Does a spouse automatically inherit everything in Scotland?

In Scotland, it is not possible to disinherit a spouse or civil partner of the deceased. Although a Will may indicate such an intention, it would not be legally enforceable in Scotland.

As for writing a Will in Scotland, it must be done voluntarily without any external pressure, in writing, and signed on every page by the person making it, with a witness present. Once signed, the Will is considered valid.

We Are Here to Help!

What happens if my partner dies and we are not married?

If someone dies in Scotland without leaving a Will and has a cohabitation partner and you are not married or in a civil partnership this can cause many problems for the person left behind.

A cohabitant Partner can make a claim of the estate to the court under The Family Law (Scotland) Act 2006. The courts will consider the following in any claim:

Has the cohabitant suffered any economic disadvantage
Has the cohabitant lost money because of the new relationship?
Length of time together.
The cohabitant's Financial Provisions and whether they are married.
Size of the estate

There are strict requirements that they must meet in order to make a claim and it is important you speak to a solicitor so you meet the criteria, you must make a claim within 6 months of death.

If you have a property in joint names and have a survivorship clause in the Title Deeds then you will inherit your deceased Partner's share of the property otherwise your deceased partner must leave their share of the property to you in the Will to be guaranteed the property

Please remember a cohabiting couple isn't necessarily recognised as being the next of Kin.

How do you stop your children inheriting your estate?

Heritable property such as land and buildings are not included in the Legal Rights calculation. So the best way to stop children from inheriting your estate is to have all of your estate in property and exclude them in your Will. There are other options like setting up a property Trust. We can advise on Trusts and if a Trust is suitable Will depend upon your particular circumstances.