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Scottish Law When It Comes To Wills And Estates

24/01/2014

The laws of England and Scotland are different when it comes to writing a Will and administering a person’s Estate once they have died.  For those with families and interests on both sides of the border thinking about inheritance issues can be quite tricky.   

Unlike under English Law, there is no automatic revocation of an existing Will in Scotland when someone gets married.  Also there are laws in Scotland which protect spouses and children from being disinherited regardless of what the Will says, whereas in England disappointed Beneficiaries are left at the mercy of the Court’s discretion.  

Whether Scottish law or English law applies to somebody’s Estate is governed by the law of your domicile.  In simple terms this means the country you consider to be your permanent home, distinct from residence and nationality.  You can only have one country of domicile and it is the laws of this country that should be used when drawing up your Will. 

Where a person lives in England but considers themselves domiciled in Scotland because they intend to return to Scotland at some point later in their life, or be buried there, Scottish legal advice should be taken in connection with the Will.  Even more so when the value of that individual’s Estate is likely to exceed the £325,000 Inheritance Tax nil rate band, as there are Scottish forced heirship provisions which give a spouse and children the right to challenge the Will if they are disinherited, which could have adverse Inheritance Tax consequences. 

With the Scottish referendum this year, even if the majority of Scots vote to remain citizens of the UK, the national distinctions between English and Scottish law when it comes to Wills and inheritances are not likely to merge any time soon.  The EU has introduced recently new rules to help clarify a complicated position where the law of two or more countries could apply.  From August 2015 most EU citizens will be able to choose whether the law applicable to the succession of their movable state (i.e. cash and investments) should be determined under the laws of the country of their habitual residence, or the country of their nationality.  However, the United Kingdom has opted out of introducing these regulations and so the question of whether Scottish or English law applies to somebody’s Will or Estate will continue to arise. 

If you have any questions regarding the contents of this blog, please do not hesitate to contact Tiffany Wiggett of Tollers Solicitors on 01604 258558 or alternatively at tiffany.wiggett@tollers.co.uk

 

Follow Tiffany on twitter @ChallengeAWill

 

 

 

Related Staff Members: Tiffany Wiggett

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