Making a will

shjo558

Hi,

(I wasn't too sure which board to put this on, apologies if it's in the wrong place.)

DH and I really need to get round to making a will. We both live, work and own our property in Scotland.

I realise the law is different in Scotland however if we made our will at a solicitors in England under English law would it be valid?

The reason I am asking is there is a grown up child who would have automatic entitlement to our estate under Scottish Law and we do not want this to happen (not saying anymore but that's how we both feel).

Thanks

G_M

Yes it would be valid.

You can even get a charity to pay for your solicitor's fee so the will is free..... provided you leave them a bequest in the will. Google.

Mojisola

G_M wrote: »

Yes it would be valid.

Wouldn't the grown-up child be able to contest the will under Scottish law as the parents live, work and own property in Scotland?

shjo558

G_M wrote: »

Yes it would be valid.

You can even get a charity to pay for your solicitor's fee so the will is free..... provided you leave them a bequest in the will. Google.

Thanks, think I'll need to have a wee trip south of the Border. I need to renew my home insurance shortly and the cheapest quote has a free will making service so might get both done at the same time.

Edit - just seen second reply - I don't know but that's what I'm trying to avoid!

Mojisola

shjo558 wrote: »

Thanks, think I'll need to have a wee trip south of the Border. I need to renew my home insurance shortly and the cheapest quote has a free will making service so might get both done at the same time.

Edit - just seen second reply - I don't know but that's what I'm trying to avoid!

Whatever you do, if you want it to be water-tight, go for a quality will!

G_M

Mojisola wrote: »

Wouldn't the grown-up child be able to contest the will under Scottish law as the parents live, work and own property in Scotland?

I stand corrected.

"Where a will has been left, the prior rights described in note 1 above do not apply. However, the legal rights described in note 2 may be claimed by a surviving spouse or civil partner or a child,...."

"2 Legal Rights
The children are collectively entitled to one-third of the deceased's moveable estate if the deceased left a spouse or civil partner, or to one-half of it if the deceased left no spouse or civil partner. Each child has an equal claim. Where a child ...."

See a solicitor!

Richard_Webster

If the people making the will are domiciled in Scotland - that is where they live and intend to remain - then Scots law governs succession to their estate, not the law applicable to where they made the will!

A will made in England might be valid as a will if it complies with whatever formalities are required in Scotland. In England it must be in writing signed by or at the direction of the testator in the presence of two witnesses present at the same time who then add their signatures in the testator's presence. These formalities may be acceptable in Scotland or they may not be. I'm not a Scots lawyer so I don't know.

Even if the will is valid that doesn't stop Scots Law overriding the terms of the will if that's what it does. I think it would be very silly to go to an English lawyer to have a will prepared if you are domiciled in Scotland.

orangeslimes

I think if you die in Scotland it won't make a difference and Scottish law will override. (may be different if you die elsewhere- not sure)

My English grandfather made a will in England (he had a Scottish version drawn up but did not sign it). He moved up to Scotland and died there.

The terms of the English will were mostly honoured but he had a child who he hadn't included in the will- and she received a small portion of the estate (something like 1/10 of the moveable estate- not sure exactly).

The same would have happened even if he had signed the Scottish version - she would still have received the same portion of money. If he had still been living in England then she would not have got anything.

but I am talking from experience and am not a lawyer.

Mojisola

shjo558 wrote: »

The reason I am asking is there is a grown up child who would have automatic entitlement to our estate under Scottish Law and we do not want this to happen (not saying anymore but that's how we both feel).

A child only has rights over your "moveable estate", not your "heritable estate". If you want to restrict the amount this person will inherit, maybe you can work out a way of having the bulk of your estate locked up in land and/or buildings.

Definitely worth spending out on some time with a solicitor.

Richard_Webster

I think if you die in Scotland it won't make a difference and Scottish law will override. (may be different if you die elsewhere- not sure)

It is where you die domiciled that is critical and that is a matter of intention. If you went on a holiday to England from Scotland and were killed in a car crash you would still have a Scots domicile. If you moved down to England to spend your remaining days with your family there and died unexpectedly a few days later then you would probably have acquired an English domicile of choice.