18 November 2019
For people in England and Wales, the process of making a Will is almost exactly the same; however, the process is slightly different north of the border in Scotland. Much of this is simply down to different terminology, although there are some subtle variations in the law which may affect how a Will is written.
First off, the main difference between Wills in Scotland is that your spouse and children are entitled to part of your estate irrespective of the terms of the Will. In England, people have what is known as “testamentary freedom”, which means that you are entitled to leave your estate however you wish. However, this freedom does not apply to Scotland.
As a result of this, unlike in England or Wales, you cannot cut out a direct family member from your Wil whatever your rationale. The only way that a spouse or child could be left without inheritance is if all the assets are tied up in property or land, as this entitlement only applies to “movable assets”.
This law can also apply to movable assets that are held in a Scottish home, with these assets termed as being “domiciled” in Scotland. Therefore, even if you live in England, any assets that are kept in Scotland fall under these laws, and would therefore need to be distributed among direct family unless an alternative arrangement is stipulated in the Will. You should also be aware that remarrying does not invalidate a Will in Scotland.
The only circumstance in which Scottish law wouldn’t apply to your Will is if it was legally witnessed and signed in England. The only exception to this would be if any stipulations in the Will contravened Scottish law. If you need any subsequent changes to your Will, it would need to be rewritten in accordance with Scottish regulations.
In certain cases, you can write a Scottish and English Will that are both applicable if you wish to deal with assets on both sides of the border separately, but it’s strongly recommended that you speak with a solicitor before going down this route.
Another difference is that you don’t need to be 18 to write a Will in Scotland. The legal age to write a Will in Scotland is 12, and you must also be of sound mind. The person writing the Will must also have full knowledge of all the assets which need to be mentioned in the Will.
There is a slight difference in Scotland when it comes to valuing shared assets. In England and Wales, an individual’s share of an asset is the half the valuation minus 10%. In Scotland, £4,000 is taken from the shared asset’s value, and it is then divided by two. For example, if someone in Scotland owned a shared property valued at £250,000, the valuation would be:
£250,000 – £4,000 = £246,000
£246,000 ÷ 2 = £123,000
Confirmation is the process by which you confirm that someone’s Will is valid. The process is largely similar to probate – used in England and Wales – but there are some legal differences. Firstly, confirmation is granted by a commissary department of the local sheriff court rather than the high court, as is the case in England and Wales.
The laws around executors are also slightly different in Scotland. An executor need only be 16 years old in Scotland, unlike in England and Wales where they need to be 18. There is also no maximum number of executors in Scotland.
By and large, the Will writing process is the same in Scotland as it is in England and Wales. However, a few key differences could affect the way your estate is distributed, so check over the finer details with a solicitor if you want to ensure your wishes are carried out.