What are the differences between Scottish & English Laws of Succession?

“We two have paddled in the stream,
from morning sun till dine;
But seas between us broad have roared
since auld lang syne.”
Robert Burns

With Blue Monday having been and gone, Burns Night is a time of celebration of the great poet himself and also of Scottish culture and tradition. As a nod to Robert Burns, we look at some key differences between Scottish and English Wills and the estate administration. Whilst there are some similarities between both, there are also important differences.

Confirmation v Probate

When a person dies, his or her executors are required to ingather the deceased’s assets, settle any liabilities and distribute the estate amongst the beneficiaries of the estate in accordance with the deceased’s will or, where there is no will, in accordance with the laws of intestacy.

Once the executors have obtained details of the estate, in Scotland they apply to the Sheriff Court for Confirmation. In England, however, executors apply to the English courts for a Grant of Probate.

While in Scotland there is no limit on the number of executors that can be appointed, in England no more than four executors can be appointed and, in certain circumstances, at least two executors will be required. In Scotland, an Executor must be over 16, whilst in England he or she must be over 18.

Legal Rights v Claims on an estate

Whilst there are similarities in the application process for Confirmation and Probate, when it comes to the distribution of estates, Scots law and English law are very different.

For example, in Scotland spouses and children have Legal Rights, meaning that they can make a claim on an estate even if they have not been included in the will, or if they feel that a will has not adequately provided for them. Such rights do not exist in England and, instead, in order to make a claim under English law an applicant must:

1. apply to the court within six months from the Grant of Probate being issued;
2. fall within a category of applicant, being the deceased’s spouse/civil partner, cohabitant, child, person treated as a child of the family of the deceased or a dependant; and
3. satisfy the court that the will or intestacy fails to make reasonable financial provision for the applicant.

Differences also exist with regards to who inherits an estate where the deceased has left no will and the format of English wills and Scottish wills also differ. It is therefore important that legal advice is always sought from an appropriately qualified Solicitor.

If you are involved in English matters and require advice, avoid a panic in thy breastie and contact our Private Client team who would be delighted to assist.