Differences between English and Scottish Law in respect of Will Writing

English and Scottish Law

Please note that some laws might have changed since this blog post was published, so it's essential to consult a legal professional for the most current information.

Legal Terminology: In Scotland, a Will is commonly referred to as a "testament" or "Scottish Will," while in England, it is known as a "Will" or "English Will." The differences in terminology reflect the distinct legal systems.

Formalities: Both English and Scottish law require certain formalities for a Will to be valid. In England, the testator (the person making the Will) signs the Will, and this must be witnessed by two witnesses who are not beneficiaries. In Scotland, the Will must be signed by the testator at the end of each page, and if it consists of more than one page, each page must also be initialed. Additionally, one witness is required, and this witness cannot be a beneficiary.

Legal Rights of Spouses/Civil Partners: In Scotland, spouses or civil partners have a legal right to a portion of the deceased person's estate, known as "legal rights." These legal rights may apply even if the spouse or civil partner is excluded from the Will. In contrast, English law does not grant automatic legal rights to spouses or civil partners.

Testamentary Capacity: The legal requirements for testamentary capacity, meaning the mental capability to make a valid Will, are similar in both jurisdictions. The testator must understand the nature of making a Will, know the extent of their property, and be aware of the consequences of their decisions.

Inheritance Tax: Inheritance tax laws differ between England and Scotland. The thresholds and rates may vary, so it's crucial to consider these tax implications when estate planning.

Legal System: Scotland has a separate legal system from England, with its own courts and legal principles. As a result, the probate process and the administration of estates may differ in each country.

What are the differences for the legal rights of spouses in England and Scotland?

The legal rights of spouses differ between English law and Scottish law, particularly in relation to inheritance and what a surviving spouse is entitled to receive from the estate of their deceased spouse.

English Law:
In England, there is no concept of "legal rights" for spouses. When someone dies without leaving a Will (intestate) or leaves a Will that doesn't provide for their spouse, the surviving spouse does not have an automatic right to a specific portion of the deceased spouse's estate. The distribution of the estate is governed by the rules of intestacy or the terms of the Will, and the surviving spouse's entitlement will depend on these factors.

If a spouse is not adequately provided for under the intestacy rules or believes they were unfairly treated in the Will, they may have the option to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows certain categories of people, including surviving spouses, to make a claim for reasonable financial provision from the estate.

Scottish Law:
In Scotland, legal rights are a unique concept that provides protection for spouses (and children) even if they are excluded from the deceased person's Will. Under Scottish law, if a person dies with a surviving spouse (or surviving children), they have a legal right to claim a share of the deceased's moveable estate, which includes assets such as money, investments, and personal belongings.

The legal rights of a surviving spouse in Scotland are known as "prior rights" and "legal rights":

Prior Rights: The surviving spouse is entitled to specific assets from the estate before any debts or legacies are paid. The assets include the family home, furniture, and a cash sum known as the "legal share."

Legal Rights: In addition to the prior rights, the surviving spouse has a right to claim a portion of the moveable estate (assets other than land and buildings). The legal rights are typically one-third of the moveable estate if the deceased left children, and one-half if there are no children.

It's important to note that legal rights apply only to moveable assets and do not include heritable assets (land and buildings) or assets held jointly with someone else.

In summary, the main difference between the legal rights of spouses in English and Scottish law is that Scotland has a system of legal rights that entitle the surviving spouse to a portion of the deceased spouse's moveable estate, even if they are excluded from the Will. In contrast, English law does not provide an automatic entitlement for surviving spouses but allows them to make a claim under the Inheritance Act if they have not been adequately provided for.

An example of a Scottish Will


I, [Testator's Full Name], residing at [Testator's Address], being of sound mind and disposing mind, declare this to be my last Will and testament, hereby revoking all previous Wills and codicils made by me.

I appoint [Executor's Full Name], residing at [Executor's Address], to be the executor of this Will. If [Executor's Full Name] is unable or unwilling to act as executor, I appoint [Alternate Executor's Full Name], residing at [Alternate Executor's Address], as an alternate executor.

I direct my executor to pay all my just debts, funeral expenses, and the costs of administering my estate as soon as reasonably practicable after my death.

I give, devise, and bequeath the following specific legacies:

a) To my spouse, [Spouse's Full Name], I leave my family home, situated at [Address of the Family Home], along with all its contents and personal belongings.

b) I leave the sum of [Amount in Words] [Amount in Numbers] to my son, [Son's Full Name].

c) I leave my car, make and model [Car Make and Model], to my daughter, [Daughter's Full Name].

I exercise my legal rights in terms of Scots law. I direct that the remainder of my estate, including my moveable assets, be divided as follows:

a) One-third of the remainder to my spouse, [Spouse's Full Name].

b) The remaining two-thirds of the remainder to be distributed equally among my children, namely [Son's Full Name] and [Daughter's Full Name].

I sign this will in the presence of the following witnesses, who are present at the same time and who, in my presence and in the presence of each other, sign their names as witnesses:

Witness 1: [Witness 1's Full Name] Address: [Witness 1's Address] Signature: _______________________________

Witness 2: [Witness 2's Full Name] Address: [Witness 2's Address] Signature: _______________________________

Signed by me, [Testator's Full Name], as my last Will and testament, this [Day] day of [Month], [Year], at [Location of Signing].

Signature: _______________________________ [Testator's Full Name] (Testator)

Please note that this is a simple example and may not cover all the necessary details and legal requirements. When creating a Will, it is essential to seek advice from a qualified solicitor or attorney to ensure that the will accurately reflects your intentions and is legally valid.