How does the law in England and Scotland affect my Will?

Many people wrongly assume that the law in relation to wills and inheritance are the same across the UK.  I want to highlight some of the main differences between Scotland and England. 

Your Will

In England, the person granting the Will is required to be over 18 years of age and sign on the last page in the presence of two witnesses.

In Scotland, the person granting the Will is required to be over 12 years of age, sign on every page in the presence of one witness.

On your death, your estate will be distributed in terms of your Will, subject to any claims, as explained below.

What happens if there is no Will? 

Things are more difficult if there is no Will. In both jurisdictions, it is necessary to consider who would inherit your assets.  This is governed by legislation, and the rules are quite different between the two countries. 

England

In England married couples/civil partners would receive £250,000, your personal possessions and half of everything in excess of £250,000.  If you have children they will receive the other half. However, if your estate is less than £250,000 your children would receive nothing. 

If your estate is over £250,000 and you have no children your spouse/civil partner would receive everything.  If you have no spouse/civil partner or children, other family members would inherit.

Scotland

In Scotland, there is a concept known as Prior and Legal Rights.  Legal Rights cannot be displaced by a Will – it is akin to forced heirship.

Prior Rights can only be claimed by a spouse or civil partner. They would be entitled to:

-  Your home to the value of £473,000;

-  Furniture to the value of £29,000; and

-  Cash of £50,000 if you have children, or £89,000 if you have no children

In addition, your spouse or civil partner and children are each entitled to one-third of your remaining assets. These are known as Legal Rights.  However, if you have no children, your spouse will receive half of your remaining assets. 

The remaining share is divided between your children, or between relatives if you have no children.  This can often mean that a spouse, where there are no children, has to share the estate with their spouse’s family.

As noted above Legal Rights cannot be defeated.  They can be claimed for at any point in the 20 years following a death.  Therefore, executors in Scotland must consider all potential beneficiaries even when there is a Will.

In England, if there is a disappointed beneficiary it may be possible to raise a court action to make a claim, however, there is no guarantee of success.

Unmarried couples

In both countries those cohabiting have the right to make an application to the court to seek financial assistance on the death of their co-habitee.  If there is a Will in Scotland no claim can be made to the court by the co-habitee.

Conclusion

It is important that you are aware of the laws of succession. The law in both countries has failed to keep up with modern family life and to avoid any unintended consequences you should draft a will to ensure your estate goes to who you would wish to inherit.

Karen Phillips is a partner at Balfour+Manson and is a specialist in areas including incapacity law, care, succession planning and personal injury trusts. She is a member of the WS, a TEP and an accredited member of SFE.

Balfour+Manson take a holistic approach to legal services, exemplified by its client welfare team which includes non-lawyers who offer advice on care and other matters such as realising the best value from client’s possessions.