Watch out for different rules governing Wills in Scotland and England - Alec Stewart

When Picasso said, “only put off until tomorrow what you are willing to die having left undone”, I am not sure that he was referring to estate planning.

However, you have probably heard the term “Last Will and Testament” – the legal document that outlines what happens to your property and assets after death. We often think of the countless benefits of putting in place a Will, namely the ability to state who you wish to inherit your assets, planning for any tax liabilities your estate may face, or recording your wishes of funeral instructions.

Yet have you considered that the rules governing the validity of Wills and who is entitled to inherit your estate is different between Scotland and England? Picking the wrong jurisdiction for a Will can cause several issues – and be too late to fix, if you have died by the time the problem emerges.

Rights for children and spouses

Alec Stewart is a Partner, Murray Beith MurrayAlec Stewart is a Partner, Murray Beith Murray
Alec Stewart is a Partner, Murray Beith Murray
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Regardless of your Will, under Scots Law, spouses and children have an automatic entitlement to claim a share of your net moveable estate (everything other than land and buildings). This means that they cannot be disinherited. Where there is a spouse, children are entitled to one-third of the deceased’s net moveable estate, and one-half where there is not. In England, there are no such automatic safeguards, although the courts have a limited power to make orders which interfere with the effect of a Will where there is judged to be a failure to make reasonable financial provision.

Different signing requirements

In England, a Will must be signed by you once and by two witnesses, which contrasts with Scotland where you must sign every page and only one witness is required. It is, therefore, important to know which court will administer your estate as the Will must comply with the correct legal requirements.

Deciding on a Scottish or an English Will and which law applies

The question of domicile in relation to the making of a Will is important and your domicile will govern what form of Will is appropriate. Domicile is a complex concept as it can be affected by various factors and is often, but not always, the country you are living in. Your moveable estate is governed by the law of your ‘domicile’ whereas land and property will be governed by the law of the jurisdiction in which the assets are situated. English and Scottish Wills can be recognised by the courts in each other’s jurisdiction, provided that they conform to the correct rules of Will drafting and execution. Should you have assets in both Scotland and England, a “hybrid” Will can be prepared.

Professional advice

One principle does remain consistent between the two jurisdictions – any person (age 12 in Scotland and 18 in England) should take professional advice on making a Will. It is also important to review your Will periodically, particularly if there has been a significant change in life circumstances (such as marriage, which revokes a Will in England but not in Scotland).

Deciding on whether to put in place a Scottish or an English Will can be a complex decision which should be carefully considered with an expert adviser; there’s no ‘one size fits all’ approach. Experienced advisers in cross-border matters will be able to help you decide what is best for you and your affairs.

Alec Stewart is a Partner, Murray Beith Murray

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