Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Deciding on whether to put in place a Scottish or an English Will can be a complex decision which should be carefully considered explains Murray Beith Murray Private Client Partner, Alec Stewart in The Scotsman today. Read the full article below, republished by kind permission of The Scotsman:
When Picasso said, “only put off until tomorrow what you are willing to die having left undone”, I am not sure that he was referring to estate planning.
However, you have probably heard the term “Last Will and Testament” – the legal document that outlines what happens to your property and assets after death. We often think of the countless benefits of putting in place a Will, namely the ability to state who you wish to inherit your assets, planning for any tax liabilities your estate may face, or recording your wishes of funeral instructions.
Yet have you considered that the rules governing the validity of Wills and who is entitled to inherit your estate is different between Scotland and England? Picking the wrong jurisdiction for a Will can cause several issues – and be too late to fix, if you have died by the time the problem emerges.
Regardless of your Will, under Scots Law, spouses and children have an automatic entitlement to claim a share of your net moveable estate (everything other than land and buildings). This means that they cannot be disinherited. Where there is a spouse, children are entitled to one-third of the deceased’s net moveable estate, and one-half where there is not. In England, there are no such automatic safeguards, although the courts have a limited power to make orders which interfere with the effect of a Will where there is judged to be a failure to make reasonable financial provision.
In England, a Will must be signed by you once and by two witnesses, which contrasts with Scotland where you must sign every page and only one witness is required. It is, therefore, important to know which court will administer your estate as the Will must comply with the correct legal requirements.
The question of domicile in relation to the making of a Will is important and your domicile will govern what form of Will is appropriate. Domicile is a complex concept as it can be affected by various factors and is often, but not always, the country you are living in. Your moveable estate is governed by the law of your ‘domicile’ whereas land and property will be governed by the law of the jurisdiction in which the assets are situated. English and Scottish Wills can be recognised by the courts in each other’s jurisdiction, provided that they conform to the correct rules of Will drafting and execution. Should you have assets in both Scotland and England, a “hybrid” Will can be prepared.
One principle does remain consistent between the two jurisdictions – any person (age 12 in Scotland and 18 in England) should take professional advice on making a Will. It is also important to review your Will periodically, particularly if there has been a significant change in life circumstances (such as marriage, which revokes a Will in England but not in Scotland).
Deciding on whether to put in place a Scottish or an English Will can be a complex decision which should be carefully considered with an expert adviser; there’s no ‘one size fits all’ approach. Experienced advisers in cross-border matters will be able to help you decide what is best for you and your affairs.
Murray Beith Murray Partner, Alec Stewart is an expert in succession, inheritance, and tax planning, and he is a dual qualified solicitor (Scotland and England/Wales). If this article has raised any questions or you would like to discuss your affairs then please call us on 0131 225 1200 or complete our enquiry form.
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise, and trust. This aim and these values continue to this day, as does our pledge to deliver a high-quality service.
