Recently, Brodies welcomed a new Senior Associate to the Personal & Family Team. Nadine Walton is a solicitor qualified exclusively in England & Wales, specialising in the field of wills, trusts and estate administration and planning.

In this series of three related articles, she looks at a few of the key distinctions pertinent to wills, trusts and estates for clients domiciled in England and Wales, as compared to those domiciled in Scotland.

Formal validity

In England & Wales, wills firstly 'look' very different to their counterparts prepared in Scotland. The requirements as to their formal validity are generally less strict north of the border. For a Will to be 'self-evidencing' (and admitted to confirmation after the testator dies), it must simply be signed by the testator on every page, with just one independent witness attesting the testator's final 'subscription' on the final page of the document.

In England and Wales, two independent witnesses must oversee the testator's execution of the Will, and sign the document accordingly, to ensure that it is valid.

Testamentary Capacity

In order to make a Will in either jurisdiction, the testator must:-

(i) Be of full age; and

(ii) Have sufficient mental capacity to understand the nature and effect of what they are doing.

A leading English case has been approved in both jurisdictions as setting out the tests for testamentary capacity in more detail. However, the question of a testator meeting the 'full age' requirement differs quite markedly between the regimes. In Scotland, the age of testamentary capacity is set at just 12, whereas in England & Wales, it's generally 18.

Executors and Trustees

'Executors' are personal representatives of deceased individuals, who act to administer the estate of that individual. In England & Wales, the term 'Executors' strictly describes only the personal representatives who are directly appointed under the terms of the Will of the deceased person. Where personal representatives are appointed according to legal rules (as opposed to under a will), and their authority is therefore conferred upon issue of the grant of representation (see below), they are called Administrators. In Scotland, the titles are 'executors nominate' and 'executors dative' in these respective scenarios.

Trustees of any trusts arising under the will are commonly also appointed under the will itself, and in practice, are frequently the same parties as the Executors. Trustees have a longer-term role than Executors, which involves administering the trust(s), which may endure long after the estate administration has been completed.

There are slight differences in the rules between the jurisdictions governing who exactly can act as Executors, and the terms of their authority. For example, a corporate entity cannot obtain a 'grant' in England & Wales, whereas it can in Scotland.

Where the role of will Trustees is concerned, there are crucial differences in how long the trust may endure, the powers of the trustees to manage the trust and provide for successors, and the rights of the beneficiaries, depending on whether the law of Scotland, or the law of England & Wales, governs the trust concerned. The differences between trusts operating under the law of each jurisdictions are covered in greater detail in the related article in this series on Trusts.

'Proving' the will post-death

'Probate' is a term used in England & Wales which describes the process of the Executor(s) of a deceased individual's Will applying for a 'grant of representation'. The grant is requested from the Probate Registry, and as part of the process, the Registry will examine the original Will and the terms of the application.

Once satisfied that the Executors have the right to administer the estate, the 'Grant of Probate' ('Grant') is then issued by the Registry, as the document confirming the legal authority of the Executors to deal with the assets and liabilities of the estate. The Grant will therefore generally be required before the Executors can sell or otherwise deal with any property of a deceased individual domiciled in England & Wales.

In Scotland, the equivalent process is called 'Confirmation'. Instead of applying for 'probate' of the Will, an application is made for Confirmation, and the application is submitted to the appropriate Sheriff Court. Again, Confirmation will generally be required before the Executors can deal with any property of a deceased individual domiciled in Scotland.

So, an English will should be proved through the Probate Registry of England & Wales, and a Scottish will confirmed through the Sheriff Court?

Not necessarily. The answer to that question, once again, hinges on the domicile the deceased had at the date of death. It's therefore very important you consider this where the deceased had links to both jurisdictions. The topic of domicile is discussed further in the related article in this series on Estates:

If an individual dies domiciled in England & Wales, then regardless of whether they hold an English or Scottish will, the starting point is that the document should be proved in the Probate Registry.

The converse is the case for individuals dying domiciled in Scotland, and application should generally be made for confirmation in the Sheriff Court, notwithstanding the fact that an English will is held by the deceased.

It is possible that, in either scenario, an opinion as to the validity of the will may be required from a solicitor qualified in the other jurisdiction in which the will was made. Brodies are well placed to assist in such cross border matters having solicitors qualified and experienced in both jurisdictions.

Summary

The content of these articles gives some indication as to just how significantly the legal rules at the heart of estate planning can differ north and south of the England/Scotland border. Yet the practical reality is that a vast number of our clients have connections to each jurisdiction, whether in terms of their own family history, the current whereabouts of their family members, or the location of their property interests. Brodies are uniquely placed to be able to assist with succession matters in each jurisdiction, as well as those that may span the two, given the expertise held by our English and Scottish qualified teams, who are accustomed to working closely together.