The differences between inheritance law in Scotland and inheritance law in England and Wales
David Lees, an English qualified inheritance dispute solicitor who hails from Scotland, looks at the interplay between inheritance law in Scotland and England & Wales.
The law in Scotland and England & Wales is different in many key respects, and nowhere is the contrast more profound than in the area of inheritance law.
In England and Wales individuals have what is known as ‘testamentary freedom’. This means they are free to choose who should inherit their estate.
In Scotland however testamentary freedom does not apply. Instead, Scottish law gives those closest to the deceased certain legal rights. This includes, for example, the right of a surviving spouse (or civil partner) and children to receive the deceased’s ‘moveable estate’. This encompasses money and belongings, but not real property.
In England & Wales the situation is balanced to some extent by the Inheritance (Provision for Family and Dependants) Act 1975. The Inheritance Act allows surviving spouses, civil partners, former spouses and civil partners, children (including children of the family) and dependants to claim financial provision from the deceased’s estate where their Will (or the intestacy rules) fails to reasonably provide for them.
Challenges can be made in England & Wales as to the validity of a Will, with similar action also possible in Scotland. This includes:
- Lack of Testamentary Capacity regarding whether a person is capable of understanding a Will.
- Undue Influence – conduct akin to coercion of the person making the Will (the Testator). In Scotland there is the separate claim of ‘Facility and Circumvention’.
- Lack of Knowledge and Approval – where problems relating to, say: a mistake in the preparation of the Will; the Testator was blind, deaf or illiterate; there were doubts about the testator’s testamentary capacity; and/or there were suspicious circumstances surrounding the preparation and execution of the Will.
- Claims relating to whether the formalities of creating the Will have been complied with.
- Forgery
The differences in inheritance law in Scotland and England & Wales can lead to practical complications arising. This is particularly common where people have lived in both Scotland and England or their assets are located in both jurisdictions. It can lead to a complex interplay between the law applicable in each nation and the inheritance rights of the individuals involved.
Where inheritance law in England & Wales impacts on Scottish inheritance law, our Legal 500 recommended team is able to assist and advise on the best course of action.
For further guidance on inheritance law in Scotland and England contact our free legal helpline on 0333 888 0407 or send us an email.