Abatement - values changed since date of death

Trusts Discussion
1

I have an executry with a homemade Will. The Will states that anything registered in Scotland goes to one beneficiary and everything registered in England to another, leaving no residue.

There is a secured debt on a Scottish property and also unsecured debts of £70,000. Taking into account date of death values, the Scottish beneficiary is due to pay 70% of the unsecured debts from her legacies. An offer has just been accepted for the Scottish property; it has sold for significantly less than than the DOD value (due to Aberdeen market). I think that the effect of this is the Scottish beneficiary ends up owing the executry! This cannot be correct. I would be grateful for assistance here - should I still rely on DOD values for calculating the abatement? Would any debt exceeding the Scottish beneficiary’s share then abate from the English beneficiary’s share?

Any help would be much appreciated. Thanks in anticipation.

Kirsten McKinnon
Burnett & Reid LLP

2

The first question must be: is the will made under Scots Law or the law of England & Wales (or even the law of a third jurisdiction)?

There are a number of differences between these laws which may well affect the outcome.

Paul Saunders

3

Dear Paul

Thanks for your response. The Will was made under Scots law. Do you have any further thoughts on the scenario?
Thanks very much.

Kirsten McKinnon
Burnett & Reid LLP

4

I the circumstances, I suggest advice be obtained from someone knowledgeable in the appropriate Scots Law (which excludes me).

You might look at the STEP website to identify persons practicing in that jurisdiction.

Paul Saunders