Very confusing situation regarding Dad's will.

Brighty

The Scottish will could be valid in england as far as i know. So long as it was written when he was over 18, of sound mind and signed by him and 2 witnesses, it would be valid in England. You might need to apply for probate in both countries though? It would mean though, that any English assets would pass as per the will, so to the wife? Questions for a solicitor familiar with both countries i think

onetwothreefourfive

This came up for a relative of mine (English will but moved to Scotland before he died) and Scottish law meant some money went to a child not named in the will. I don't think you need to worry about legal battles or anything like that- Scottish law is clear - I think it probably is as simple as ticking the box saying you want to claim it and receiving the cheque.

Keep_pedalling

Brighty wrote: »

The Scottish will could be valid in england as far as i know. So long as it was written when he was over 18, of sound mind and signed by him and 2 witnesses, it would be valid in England. You might need to apply for probate in both countries though? It would mean though, that any English assets would pass as per the will, so to the wife? Questions for a solicitor familiar with both countries i think

As per my previous post, probate is applied for in the country the deceased was domicile in, you neither need two wills or apply twice. If that was the case it would horribly complicate the estates of every residen of Scotland or NI who held shares on the LSE.

Yorkshireman99

Brighty wrote: »

The Scottish will could be valid in england as far as i know. So long as it was written when he was over 18, of sound mind and signed by him and 2 witnesses, it would be valid in England. You might need to apply for probate in both countries though? It would mean though, that any English assets would pass as per the will, so to the wife? Questions for a solicitor familiar with both countries i think

It is more complex than that. As I said before a will made in England can only dispose of property in England. In this respect England and Wales are regarded as the same. Scotland and Northern Ireland have different rules. So much for the United Kingom! If the testator dies in Scotland or is domicled there then Scottish law applies and if there is no Scottish will the Scottish estate will be intestate. Domicile is not an easy topic and needs professional advice if it is a potential issue.

Keep_pedalling

Yorkshireman99 wrote: »

It is more complex than that. As I said before a will made in England can only dispose of property in England. In this respect England and Wales are regarded as the same. Scotland and Northern Ireland have different rules. So much for the United Kingom! If the testator dies in Scotland or is domicled there then Scottish law applies and if there is no Scottish will the Scottish estate will be intestate. Domicile is not an easy topic and needs professional advice if it is a potential issue.

Any UK will can deal with any asset anywhere within the UK. Just have a read of the notes for the CI form (confirmation) to confirm that.

Just dying in Scotland does not mean Scottish inheritance law applies, you have to be resident there for that to happen.

Yorkshireman99

Keep_pedalling wrote: »

Any UK will can deal with any asset anywhere within the UK. Just have a read of the notes for the CI form (confirmation) to confirm that.

Just dying in Scotland does not mean Scottish inheritance law applies, you have to be resident there for that to happen.

Very curious indeed since the Scottish Court has no jurisdiction outside Scotland. However HMR&C's remit covers the U.K.

dfgdfghxdfdzgv

To clarify - he was domiciled in Scotland. So Keep Pedalling's point that Scottish law applied to him is correct.

Yorkshireman - I get your points about property (as the laws of the land in which that property is located presumably apply - so this would make things complex if he had houses in Spain, France, or even England) but this isn't property. Property is counted as "inheritable estate" in Scotland. As I was not named as direct beneficiary on my father's will, I have no right to claim this.

However, under Scottish law, I am entitled to claim "movable estate" - which in this case includes business/personal bank accounts, pension funds, and his life assurance policy. It just so happens that these accounts/pensions/policies were registered with English companies, which I assume is why they're covered under "English" assets. From what the letter seems to be stating, they're still part of, and included in, his "movable estate" within Scotland, and therefore under Scottish law.

To clarify for Yorkshireman too - he did not die intestate (his will was complete and I have a copy) and his will is based on Scottish law.

As onetwothreefourfive suggests, I'm hoping it is as simple as returning the letter with my signature.

Frankly, while I'm sure he wouldn't have had any issue with me or my brother claiming on this, I do know he would have hated it being some drawn out legal issue, as would I. I'd personally rather just leave it if it were to come to that. Might sound daft, but if I had to fight through courts, etc, it would feel like "dirty" money.

Keep_pedalling

Yorkshireman99 wrote: »

Very curious indeed since the Scottish Court has no jurisdiction outside Scotland. However HMR&C's remit covers the U.K.

The law of Scotland in this case applies to the distribution of the estate, where the assets actually reside is not that important, especially as any tax is collected centrally by HMRC.

If Scotland gains full independence with ifull tax raising powers things might get somewhat more complex

Yorkshireman99

Keep_pedalling wrote: »

That is not correct, a Scottish will covers all assets held within the UK, as does an English/Welsh or NI will. Which law applies and where you apply for probate is based solely on where you are domiciled.

From the notes for filling in form C1 confirmation.

Before you can act as an Executor of any
estate in Scotland you normally need to obtain Confirmation. If the deceased was domiciled (see below) in Scotland, this enables you to administer the assets throughout the United Kingdom.
If, however, the deceased died domiciled in England or Wales or in Northern Ireland you will need to obtain probate there.

My wife was the residual beneficiary from her Scottish uncle's will and both English and Scottish assets were covered under the one will, as were foreign equities. A second will is only normally needed if you own overseas assets such as property.

I accept what you say about the notes but how can this be when the Scottish courts have no jurisdiction outside Scotland? They have no direct way of enforcing it. I would lo see a cite for the legislation that allows this. Also there are numerous statements from solicitors suggesting that two wills ARE required. This is one


http://worldwidelawyers.co.uk/wills-probate/wills-probate-in-scotland/#thecost

I would just like to find a defitive statement of the law. As far as foreign assets are concerned no U.K. Court has any jurisdiction. What can happen in some foreign jurisdictions is that the overseas country will accept a certified translation of a copy of a UK will but the foreign rules will apply. This from personal experience dealing with some shares held by a deceased relative in Switzerland.

Keep_pedalling

The courts don't need to enforce anything, the executor of the estate of a deceased Scottish resident has the ability to sell and distribute the UK assets of the deceased in exactly the same way as the the deceased could have done when they were alive,

The only restriction is that they must meet the rights of succession laws as far as distribution is concerned, which is where courts may need to step in. Most Scottish people will have movable assets that reside outside of Scotland in the form of shares, funds or bonds and if this required two wills it would cause major problems because few if any do.