Warning that English wills may not be valid in Scotland

Legal professionals across the UK have seen a marked increase in estate planning instructions from existing and new clients during the coronavirus pandemic. Coinciding with social distancing regulations, this has creating ongoing issues with the process of witnessing wills.

It has also underlined differences between English and Scottish law, as Matthew Smith, a senior solicitor at Glasgow-based law firm Harper Macleod, points out. Writing in the Scotsman newspaper, he discusses a recent case involving an individual living in Scotland who died having only ever signed an English will that was drawn up by solicitor in England.

A Scottish will must be signed on every page, whereas an English will only requires a signature on its final page. This particular will, signed on its last page, was therefore not in accordance with Scots law, while English law was not applicable to the estate.

This type of situation creates problems for those administering the estate, because it requires affidavit evidence from witnesses and the solicitor who prepared the will. Tracing witnesses is a specialist task that can be time-consuming, but it should also avoid the worst case scenario of a court ruling that a will is invalid; in which case the law of intestacy would apply.

Under intestacy rules an estate is distributed in accordance with a strict set of guidelines that may well be entirely different to how a person might have wanted their estate to be dealt with.

While people sometimes forget the differences in law between England and Scotland, they would be well advised to make a will in every country in which they have assets and to make sure all such documents are kept up to date.