Differences between an English Will and a Scottish Will

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.

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.

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.

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.

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.

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:

1. Has the cohabitant suffered any economic disadvantage
2. Has the cohabitant lost money because of the new relationship?
3. Length of time together.
4. The cohabitant's Financial Provisions and whether they are married.
5. 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.