It’s common nowadays for people to have lived in both Scotland and England and to have assets both north and south of the border. So: do you need a Scottish will, an English will or both?
What’s the difference between a Scottish will and an English will?
People often don’t realise that the law relating to wills and who is entitled to inherit your estate is different between Scotland and England.
Some of the differences include:-
- In Scots Law your spouse and children are entitled to inherit a share of your estate, regardless of the terms of your will. This means it is usually not possible in Scotland to completely cut out a spouse or a child from your estate. The entitlement is to a share of your moveable estate (everything other than land and buildings).
English law does not have any automatic entitlement for children or spouses where there is a will. However, in England family members can raise a claim for financial provision against your estate. It is therefore it is up to a court to decide what is fair in each individual case.
- When you sign the will, in England two witnesses are required to your signature and only the last page of the will is signed; in Scotland only one witness is needed but you must sign every page of the will.
- The law setting out who would inherit your estate if you do not have a will, or if none of the beneficiaries named in your will have survived you, is different in Scotland and England.
Does Scots law or English law apply to my estate?
Land or buildings in Scotland will be dealt with under Scots law. Land or buildings in England are dealt with under English law.
Your moveable estate (everything other than your land and buildings, such as cash, savings or investments) is dealt with under the law of your “domicile.” Your domicile is often, but not always, the country in which you are living. Domicile is a difficult concept which is affected by various factors such as where your father was domiciled and where you intend to remain living. A solicitor can advise you if you are unsure where you are domiciled.
If you are domiciled in Scotland, Scots law will apply to your moveable estate. If you are living in Scotland, but are domiciled in England, English law will apply.
I have an English will and have moved to Scotland. Do I need a new will?
If your English will is straightforward, it may still be valid in Scotland. Even if it wasn’t signed under the Scottish signing rules, if it was signed validly under English law while you were living there then it would be treated as valid in Scotland.
A solicitor should be able to review your English will for you and advise whether there is anything inconsistent with Scots law.
In any event, given that you have moved country, it is probably a good time to take stock and review whether you wish to make any updates. We advise clients to do this regularly, and certainly when there has been any major life change.
I still have assets in England. Do I need two wills?
Again, it depends on your circumstances.
If you still have land or buildings in England, but have moved to Scotland and are now domiciled in Scotland, your land/buildings will be dealt with under English law and your moveable estate will be dealt with under Scots law.
It may be that the best solution is to retain your English will to deal with your English property and then have a new Scottish will to deal with all other assets. This is entirely possible; it just requires some careful drafting to ensure that each will is clear as to what it is dealing with.
What about Inheritance Tax?
Inheritance tax laws are UK wide: the same laws apply to Scotland and England. Therefore, if you have done some inheritance tax planning in England, this remains effective in Scotland. However, inheritance tax laws change regularly and again it is always worthwhile considering whether any changes should be made.
There is no one size fits all solution: you need to find the right solution for you. A qualified solicitor with experience in cross-border matters will be able to advise you. Your solicitor will ask questions about your circumstances to figure out which law applies and then advise you on the best course of action.