Wills validity warning for anyone recently moved north of the Border – Matthew Smith

Matthew Smith highlights differences between Scots and English documents

Matthew Smith is a Senior Solicitor, Harper Macleod

Estate planning is one area of the law that has felt the direct impact of Covid-19 as practitioners have experienced a dramatic increase in instructions from existing and new clients.

The most significant departure from normal rules of practice has been the execution of wills and powers of attorney. Social distancing meant it was almost impossible to have an independent adult witness to the signing of a document such as a will. With Law Society of Scotland guidance, the profession adapted and we have been witnessing the signing of documents through video conferencing.

The importance of having a valid and effective will in place is not new and many cases before, during and almost certainly after the easing of lockdown have demonstrated the difficulties experienced by families left behind to deal with an estate.

In a recent case, an individual of Scottish domicile died having only ever signed an English will. The deceased had resided in Scotland but used an English solicitor to prepare their will.

A Scottish will requires to be signed on each page, whereas an English will only requires a signature on the final page. This will had only been signed on the final page and was therefore not signed in accordance with Scots law. English law was not applicable to the estate.

Such situations create problems in administering the estate as affidavit evidence would be required from witnesses and the solicitor who prepared the will to ensure the validity of the will under Scots law. Tracing witnesses can be time-consuming and costly and add frustration.

The worst case scenario, of course, would be for the court to deem the will invalid, in which case the law of intestacy would apply.

Intestacy is the default position where a person has died without a will in place, or have signed a will but it is invalid, so the law determines who inherits the estate. The distribution of the estate follows a strict, inflexible set of rules that don’t consider the modern construct of family and are widely outdated.

The law of intestacy involves different administrative stages, which may well differ significantly from how a person might have wished their estate to be dealt with. It also requires an application to the court to have an executor appointed and, in most cases, an insurance-type policy known as a bond of caution is also required. These steps and unexpected outcomes can be avoided by having a valid will in place.

The significance of having a Scottish will as opposed to an English will extends beyond clients living in the border area. For anyone who has moved from another country, England or further afield, and considers Scotland their permanent home, the same difficulties might arise.

In the majority of cases, it is likely a new Scottish will might be required but each case would be considered on its circumstances.

It is standard practice to advise clients to make a will in every country in which they have assets and steps can be taken to ensure each will is and remains valid, even when they have multiple wills in multiple jurisdictions.

If you have recently moved to Scotland and intend this to be your permanent home, or have assets in Scotland, it would be advisable to determine whether it is worthwhile putting a Scottish will in place.

Matthew Smith is a senior solicitor, Harper Macleod