Wills and Inheritance – differences between Scotland and England 20 September 2013

Wills and Inheritance – differences between Scotland and England 20 September 2013

Wills and Inheritance –differences between Scotland and England

20 September 2013

 

This is our 4th article out of 5 in looking at the differences in law between England and Scotland. We have recently been instructed by quite a lot of Chinese clients instructing us to produce an immediate Will. Therefore, to assist the Chinese public, this article will look at wills and inheritance and the main differences between England and Scotland. Because of the difficulty of this subject, we have tried to simplify it by the use of clear bullet points.

How to create a valid Will

Key elements of a valid Will

In England, all of the following are required for the Will to be valid:

  • The testator has to be over 18;
  • The Will is made in writing (can be typed or handwritten);
  • The testator is of sound mind and intends to give effect to the Will;
  • It is signed by the testator on the last page;
  • The testator signs in the presence of 2 or more witnesses; and
  • Each witness signs the Will.

In Scotland, all of the following is required for the Will to be valid:

  • The testator has to be over 12;
  • The Will is made in writing (can be typed or handwritten);
  • The testator is of sound mind and intends to give effect to the Will;
  • It is signed by the testator on every page including at the end of the Will;
  • The testator signs in the presence of 1 or more witness;
  • The witness signs the Will.

Registration

The Will takes effect on death of the testator. In both England and Scotland, many people have their Wills stored in their solicitors’ office for safekeeping. The Wills can also be registered too. In England, the Will can be registered at Court known as the “Principal Registry of the Family Division” or at the “District Registry” and this registration can occur before death. In Scotland, it is after death that the Will is normally sent to “The Books of Council and Session” where it will be stored forever.

Re-marriage

In England, a Will is invalidated by marriage (unless it is made in anticipation of marriage). Upon divorce, any gift left to the former spouse is cancelled. But in Scotland, a Will is not invalidated by marriage or divorce. So a divorced spouse in Scotland should create a new Will or the former spouse could inherit, if that is what the old Will said.

Undue influence

A Will can be made invalid if the beneficiary has exerted undue influence on the testator. Undue influence occurs where the testator placed trust in the beneficiary but the beneficiary has abused that trust. For example, in the Scottish case Gaul v Deerey (2000), the testator was a 91 year old. She first made a Will in 1994 leaving her assets to Mr Gaul. But in 1997, a taxi driver called Mr Deerey falsely told the testator that Mr Gaul said bad things about her so she made a new Will and left her assets to Mr Deerey. Because of these lies, the 1997 Will was invalidated

Another example is an English case called Williams v Williams [2003]. The testator was disabled and could not read or write and could not cope on his own. His brother and wife moved into his house to look after him. His brother persuaded him to give up one half of his house to him and his wife. Correspondence between the testator and his solicitor could only be read by his brother and his wife. The Court found there was undue influence.

A recent 2013 English case called Feltham v Bouskell [2013] makes it clear that if the testator is mentally fit enough to make a Will, then it is up to her as to who she leaves her assets to. It is not the duty of a lawyer to advise the testator who the beneficiaries should be.

What happens if there is no Will

If there is no Will, the inheritance rules become complicated.

England

  • If the residuary estate is not more than £250,000, the spouse receives everything.
  • If the residuary estate is more than £250,000 and there are children, the spouse gets £250,000, all personal chattels and one half of the remaining residuary estate. The children get the remaining half of the residuary estate.
  • If the residuary estate is more than £250,000 and there are no children but there are parents: if the estate is less than £450,000, then the spouse inherits everything. If the estate is more than £450,000, then the spouse gets all personal chattels, £450,000, plus half of the remaining residuary estate. The parents get the remaining half of the residuary estate.
  • If there are no other family of the testator, including parents and siblings, then the spouse receives everything.

Scotland

  • The spouse gets the dwelling house up to the value of £473,000.
  • The spouse gets furniture and plenishings of the house up to the value of £29,000.
  • The spouse gets a further financial sum of £50,000 if there are children, and £89,000 if there are not.
  • “Legal Rights” – The spouse and children get one-third of the moveable estate each. Moveable estate are all types of assets apart from land. This includes bank accounts, investments, furniture, cars, jewellery, etc. If there are no children, the wife gets one-half of the moveable estate.
  • After paying the above, if there is any residuary estate remaining, then it will be divided between the family members, with children ranked first, and parent, brothers and sisters ranked second.

The above “Legal Rights” requires further explanation. Legal Rights are still available even where there is a Will. This helps to ensure that the spouse and children will get at least one-third of the moveable estate even if the testator does not leave them anything in the Will. The time limit to claim for Legal Rights is 20 years upon death.

Non-married couples

In England, non-married couples can make a claim of the deceased’s estate if:

(i)            For 2 years prior to death, they lived in the same house and were in a relationship together; or

(ii)          They were maintained by the deceased wholly or partly immediately before death.

The time limit to make a claim in England is 6 months from the grant of probate.

In Scotland, non-married couples can also make a claim of the deceased’s estate but the Judge has a lot of discretion as to whether to make an award and how much. The time limit to bring a claim is 6 months from death. In Savage v Voysey’s Executrix (2009), the relationship only lasted 3 years and the deceased’s co-habitant already received very valuable pension benefits. The Judge noted that the deceased did not make a will to protect the co-habitant’s rights and awarded her nil.

A much different result occurred in Windram v Giacoppazzi’s Executor (2009). At death, the deceased’s estate consisted of:

  • A house with a net equity value of £120,000
  • House contents: £2,000
  • An Amusement Arcade and flat: £170,000
  • Bank accounts: £19,000
  • Bonds: £9,000

(Total: £320,000)

The co-habitant and the deceased lived together for 26 years and had 2 children, aged 15 and 10. The Judge found it fair an award should be made and awarded the co-habitant the house (£120,000) plus an extra £34,000.

Tips

To avoid the complications of the English or Scottish intestacy rules and to ensure that your assets go to your desired persons, then a Will should be created. It is important that a Will is validly executed as otherwise it is deemed invalid and checks should be done that no undue pressure was exerted. Co-habitants may have a right to the estate particularly if the relationship has lasted for a long time and there are children involved. However, the 6 month time limit needs to be strictly observed if co-habitants wish to bring a claim.