The main difference between Scottish and English wills
In many respects there are similarities between Scottish and English laws relating to wills. For example, the terms “will”, “executor”, and “codicil” are used both sides of the border. However, in some regards matters are very different either side of the border. The main differences are as follows:
Age related matters
In Scotland a person can make a valid will at the age of twelve. In England and Wales, however, it is not possible for a person under the age of eighteen to make a valid will unless they are a soldier in actual military service or a mariner or seaman at sea.
In Scotland a “testator” (the person whose will it is) need only be sixteen whereas in England and Wales a person must be eighteen before they can be an executor.
Beneficiaries
In England and Wales a testator can, by writing a will, leave his or her estate to whomever they wish.
In Scotland, however the deceased’s spouse or civil partner has, what is known as, “prior rights” and spouses, civil partners, children, grandchildren and great-grandchildren have, what is known, as “legal rights”.
The consequence of these rights is that it is very difficult for a Scottish testator to disinherit their spouses, civil partners and children and sometimes even their grandchildren and great-grandchildren. Any attempt to exclude such family members from inheriting a Scottish testator’s estate will be invalid.
The “prior rights” of a spouse or civil partner
If the deceased owned a house and his or her spouse or civil partner lived there, then the surviving spouse or civil partner inherits the house as long as its value is less than £300,000. The surviving spouse or civil partner also inherits the furniture and furnishings at that house up to the value of £24,000.
If the house is worth more than £300,000 then the surviving spouse or civil partner will inherit the sum of £300,000.
The surviving spouse or civil partner also inherits money from the deceased’s estate. The amount they inherit will depend upon whether the deceased has any surviving children, grandchildren or great-grandchildren. If the deceased didn’t leave any surviving children, grandchildren or great-grandchildren then the spouse or civil partner will inherit the first £75,000 of the deceased’s estate. If the deceased did leave children, grandchildren or great-grandchildren then the spouse or civil partner will inherit the first £42,000.
The “legal rights” of a spouse, civil partner, child or grandchild or great-grandchild
Surviving spouses, civil partners and children of the deceased have legal rights to the deceased’s “moveable estate”.
The term “moveable estate” is used to describe assets which can be physically moved such as money, cars, furniture and shares. Assets such as land and buildings, which cannot be moved, are referred to as the deceased’s “heritable estate”.
If the deceased left children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one third of the moveable estate. If the deceased did not leave any children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one half of the moveable estate.
If the deceased left children and a spouse or civil partner, then his or her children will inherit one third of the moveable estate between them. If, therefore, the deceased left 2 children they will each inherit one sixth of the moveable estate.
If the deceased did not leave a spouse or civil partner, then his or her children will inherit one half of the moveable estate between them.
Grandchildren and great-grandchildren only have legal rights if their own parents die before the deceased. Where that happens they will inherit the share, which their parent would have been entitled to.
The signing of wills
In England and Wales if a will consists of several pages the testator need only sign one of the pages provided that the pages are attached in some way. In Scotland, however, the testator is required to sign each page of the will.
The witnessing of wills
In England and Wales the testator’s signature must be witnessed by two witnesses. In Scotland, however, only one witness is required.
The date of the will
In Scotland for a will to be valid it must contain a “testing clause” giving the date of the will. In England and Wales, however, the failure to include a date on the will may not be critical.
Marriage and civil partnership
In England and Wales a will is automatically revoked if the testator marries or enters into a civil partnership unless the will was made in contemplation of the marriage or civil partnership. If a will is revoked it is treated as invalid and if, therefore, no further will has been made the deceased’s estate will be distributed in accordance with the rules of intestacy.
In Scotland, however, a will is not revoked if the testator marries or enters into a civil partnership.
Divorce and dissolution of a civil partnership
In England and Wales when a “decree absolute” (a court order which finalises a divorce) is made or, in the case of a civil partnership, a “decree of dissolution” (a court order which brings a civil partnership to an end) is made, any provisions contained in a will which benefit the ex-spouse or ex-civil partner are automatically revoked. Similarly, once a decree absolute or a decree of dissolution has been made any provision contained in a will appointing the ex-spouse or ex-civil partner as an executor or trustee will be automatically be revoked.
In Scotland, however, a divorce or dissolution of a civil partnership normally has no effect on a will. As a consequence any bequests made to an ex-spouse or ex-civil partner will normally remain valid.