Two Wills are better than one in certain cases - Andrew Paterson

Ask any lawyer for the top ten things that cause them problems and I’m sure clients dying intestate would feature. It is astonishing to think the majority of people in the UK still don’t have a Will.

This inevitably leads to complications for lawyers trying to wind up estates and there are a myriad of reasons or excuses for people not properly sorting out their affairs. Whether any of them are valid is a moot point. In the UK, we don’t appear to be very good when it comes to talking about or addressing death and its many implications. There is also an oft-quoted misconception that family members can simply decide how the spoils, if there are any, can be divvied up. If only it were that simple.

Imagine the lawyer’s angst when they have to advise that a client needs not one, but two Wills – more common than you might imagine. I suspect many people might not realise this is even possible, never mind eminently sensible. It is perfectly legal to have two Wills.

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Who might this apply to? Recent estimates show almost one million Brits own a home abroad and for us, as lawyers, anyone with an overseas asset immediately flags an issue. People have a habit of thinking their affairs are fairly straightforward, but it’s surprising how often complexities emerge especially with an overseas investment or asset. So seek professional advice if you want to avoid potential financial pitfalls in the future. If you own a holiday home in Spain, you will in all likelihood need a second Will as the Spanish authorities make it difficult for foreign Wills to be recognised.

Andrew Paterson is a Partner with Murray Beith MurrayAndrew Paterson is a Partner with Murray Beith Murray
Andrew Paterson is a Partner with Murray Beith Murray

On that basis, you would need to engage a local lawyer to draw up a second Will dealing specifically with assets in the second country, but crucially the two documents must work in harmony as the obvious concern is that one could cancel out the other. Some countries have specialist lawyers dealing with the UK ex-pat community, but it is vital to check they are aware of any differences between Scots and English law. Asking your UK-based lawyer to tap into their own overseas networks can be an important, reassuring first step.

The most obvious benefit of having a second Will is that succession laws are unlikely to be the same in every country and a single Scottish Will may fall foul of, or not fully cater for, those laws. Secondly, estates in each country can be realised and distributed at the same time. This then avoids having to wait for Confirmation in Scotland (Probate in England and Wales), which can be a lengthy process, to allow the winding up of the estate in the other country.

For a second Will, executors and beneficiaries do not have to be the same, as each Will is completely independent of the other. A cautionary note, however, is that if you update your Will, you do not inadvertently revoke the second one. There is little point playing a sensible game only to trip up on technicalities. Make sure your trusted advisers in each jurisdiction know of and speak to each other.

When you are buying abroad, your primary concerns might revolve around the location and the amenities the area offers. At the risk of being curmudgeonly, my advice is to broaden your thoughts to include legal and financial issues, taking advice around death taxes and tax treaties, some of which were affected by Brexit. After that, you can start thinking about nearby restaurants and bars.

Andrew Paterson is a Partner, Murray Beith Murray