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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
Individuals who die domiciled in England and Wales enjoy freedom of testamentary disposition and may leave their assets to whomever they wish. There are no forced heirship rules.
However, where an individual dies domiciled in England and Wales, certain categories of people may bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 for financial provision from the deceased’s estate, if they do not consider that reasonable financial provision has been made for them, either under the terms of the deceased's will or the intestacy rules. Assets held by a deceased person under a joint tenancy automatically pass to the surviving joint owner.
Forced heirship rights apply, to a limited extent, to the movable assets of an individual who dies domiciled in Scotland. Where an individual who was domiciled in Scotland dies intestate, a surviving cohabitee may bring a claim for financial provision from the deceased’s estate.
What rules and procedures govern intestacy?
Where an individual dies fully or partially intestate, statutory intestacy rules dictate how his or her estate (or the part of the estate which is not dealt with by a valid will) must be distributed.
The intestacy rules applicable in England and Wales are set out in the Administration of Estates Act 1925 (as amended by the Inheritance and Trustee Powers Act 2014). If the deceased was survived by a spouse or civil partner and there are no children, the spouse or civil partner will receive the whole estate. If there are children:
- the spouse or civil partner will receive:
- £250,000 (up to the full value of the estate if it is worth less);
- all of the deceased’s personal belongings; and
- one-half of the remainder of the estate outright; and
- the children will receive the remainder of the estate in equal shares.
If the children are under 18 years old, this will be held on trust for them until they are 18.
Where there is no surviving spouse or civil partner, the estate will pass to the deceased’s surviving children in equal shares on reaching 18 years old. Where there are no children or the children die before reaching 18 (or marrying), leaving no children of their own, the estate passes to the deceased’s parents in equal shares or, failing that, the deceased’s siblings in equal shares.
Different provisions apply in Scotland. The Succession (Scotland) Act 1964 sets out how an intestate estate is distributed under Scottish law.
What rules and restrictions (if any) apply to the governing law of a will?
A will drafted in the United Kingdom need not be governed by the law of some part of the United Kingdom.
Under the law of England and Wales, a gift of movable property in a will is valid if it complies with the law of the domicile of the testator. A gift of immovable property is valid if it complies with the law of the country in which the property is situated.
The position is the same under Scottish law.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
Under the law of England and Wales, subject to limited exceptions, to make a valid will the testator must:
- be 18 years old or over;
- intend to make a will;
- have mental capacity (the test derives from Banks v Goodfellow (1870));
- not be acting under undue influence or as a result of fraud; and
- know of and approve the contents of the will.
Pursuant to Section 9 of the Wills Act 1837, to be valid a will must be:
- in writing; and
- signed by or on behalf of the testator in the presence of two witnesses, who must also sign in the presence of the testator (beneficiaries or their spouses or civil partners should not act as witnesses).
It must also be clear that the testator intended to give effect to the will by his or her signature (ie, the document should state on its face that it is a will).
Once a grant of probate has been issued, the will (and any codicil to it) becomes a public document. However, a letter of wishes accompanying the will remains confidential.
The formal validity of a will under Scottish law is governed by the Requirements of Writing (Scotland) Act 1995. Under Scottish law, an individual has legal capacity to make a will at the age of 12. The testator must also have mental capacity, must not be acting under undue influence or as a result of fraud, and must know of and approve the contents of the will.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
Under the law of England and Wales, the validity of a will can be challenged on the following grounds:
- The testator lacked mental capacity. If the will is prima facie rational and the testator was normally mentally capable, there is a presumption that the testator had capacity to make the will. The onus of proof will be on the parties seeking to rebut this presumption. It is irrelevant that the testator lost mental capacity after executing the will.
- The testator lacked testamentary intention. Where a will is signed in accordance with the formalities set out in the Wills Act 1837, there is a rebuttable presumption that the testator intended to make the will.
- The testator lacked knowledge of or did not approve the will. There is a rebuttable presumption that the testator knew about and approved the contents of the will where the correct formalities are observed.
- The testator acted under undue influence or as a consequence of fraud.
- The execution formalities were not correctly observed. Where a will contains an attestation clause (ie, it states that the will has been properly executed in line with the Wills Act 1837), the presumption is that the will was properly executed and is valid.
The grounds for challenging a will under Scottish law are similar.
If a will is found to be invalid, the deceased’s estate will pass in accordance with an earlier valid will or, failing that, the intestacy rules.
A will cannot be amended after the death of the testator. However, where an individual dies domiciled in England and Wales, the provisions of a will may be varied in the event that a successful claim is brought under the Inheritance (Provision for Family and Dependents) Act 1975, and individual beneficiaries under a will can re-direct bequests to them.
Under Scottish law, spouses, civil partners and children of the deceased can claim their legal rights under the forced heirship rules regardless of the terms of the deceased’s will. However, if they claim their legal rights, they forfeit any entitlement under the deceased’s will. Where an individual who was domiciled in Scotland dies intestate, a surviving cohabitee may bring a claim for financial provision from the deceased’s estate.
How is the validity of a will established in your jurisdiction?
Under the law of England and Wales, a will is presumed to be valid unless there is evidence to the contrary, in which case the presumption can be rebutted.
A gift of movable property in a will is valid if it complies with the law of the domicile of the testator. A gift of immovable property is valid if it complies with the law of the country in which the property is situated. The position is the same under Scottish law.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
Foreign wills are admitted to probate in England and Wales if they are executed in accordance with the requirements for executing a will in Section 9 of the Wills Act 1837. In addition, foreign wills are valid in both England and Wales and Scotland if they are executed in accordance with the laws of the country in which they were executed or in which the testator was domiciled, habitually resident or a national at the time of execution or death.
Foreign wills relating to immovable property are valid in relation to the immovable property if they are executed in accordance with the law of the country where the real property is situated.
The EU Succession Regulation (650/2012) (‘Brussels IV’) does not apply in the United Kingdom, but will apply to an estate that has connections to both the United Kingdom and an EU member state that is bound by Brussels IV.
What rules and procedures govern:
(a) The appointment of estate administrators?
Under the law of England and Wales, where a will provides for the appointment of executors, the estate will vest in the executors from the date of death. However, a grant of probate is still required to prove title.
Where no will exists (or the will failed to appoint executors effectively), the estate will vest in the public trustee until the court has issued a grant of representation authorising the personal representative (loosely, the next of kin – the exact categories of person and order of priority is set out in the Non-Contentious Probate Rules 1987) to act as an administrator. The administrator’s authority is then backdated to the time of death.
In both cases, an oath must be submitted in prescribed form in order to obtain a grant.
A grant is not generally required where jointly held property passes to a surviving joint tenant by survivorship or where the estate comprises no real property, shares or chattels.
The procedure differs in Scotland. The executors must obtain a grant of confirmation which gives them authority to deal with the deceased’s property.
(b) Consolidation and administration of the estate?
Once a grant has been acquired, the executors or personal representatives have authority to:
- collect in the assets of the deceased;
- pay any liabilities; and
- distribute the balance.
In practice, most institutions require sight of the grant of probate (or confirmation in Scotland) before assets are released to the personal representatives or executors.
However, in England and Wales, a grant of representation is not required in relation to certain assets.
(c) Distribution of the estate to heirs?
Under the law of England and Wales, subject to certain exceptions, the estate can be distributed to the heirs only after the issue of a grant of representation. The estate will be distributed in accordance with the deceased’s will or the intestacy rules where no valid will exists.
Under Scottish law, the estate can be distributed to the heirs after the issue of a grant of confirmation. However, a spouse, civil partner or child of the deceased can claim legal rights over the estate. Executors should obtain formal discharges of these legal rights.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
To obtain a grant (or confirmation in Scotland), the personal representatives or executors must value the deceased’s estate. Any inheritance tax must be paid to Her Majesty’s Revenue and Customs (HMRC), which will issue a receipt. If no inheritance tax is payable, HMRC will issue a certificate. No grant of representation will be issued without the HMRC receipt or certificate.
Unless the estate is an excepted estate, the inheritance tax account must be delivered within 12 months of the end of the month in which the deceased died (or within three months after the personal representative is appointed, if this is later). In most cases, any inheritance tax must be paid within six months of the end of the month in which the deceased died.
Once the inheritance tax has been paid and a grant has been provided, the personal representative can collect in the deceased’s assets and settle the deceased’s debts, including any tax owed from the deceased.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
Gifts to spouses or civil partners are generally exempt from inheritance tax; therefore, inheritance tax is generally not an issue until the death of the surviving spouse or civil partner. Gifts made to individuals more than seven years before death escape inheritance tax. In addition, certain trusts established by will (particularly those for bereaved children) enjoy beneficial tax treatment.
Under the law of England and Wales, the marriage or civil partnership of a testator automatically revokes any will made by the testator before the marriage or civil partnership (Section 18 of the Will Act 1837). Under both the law of England and Wales and the law of Scotland, divorce or dissolution of a civil partnership does not revoke a will; the former spouse or civil partner is treated as if they had predeceased the testator.
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