English wills / Scottish assets

New clients with main homes in Scotland but second homes and businesses (and majority of wealth) in England.

The issue of domicile is exam-worthy in both cases but probably English domicile of origin at present (both have some Scottish ancestry).

I only know enough about Scottish law to know that it is often different to English law in delightful and unexpected ways.

Would anybody be able to steer me in the right direction with any of the following (in the absence of any Scots, guesses from the English are also welcomed):

  1. Would an English grant of probate be accepted by the Scottish Land Registry without resealing?
  2. Would a will creating an English law trust over Scottish land be valid (the land being part of residue) - this could be IinP or discretionary?
  3. In the event one was (or became) domiciled in Scotland, would a legacy leaving the entire residue to a spouse remain valid despite the forced heirship rights of the children (i.e. is the legacy void or voidable)? Their most valuable possessions are currently movables in the form of shares.

Many thanks in advance.

Andrew Goodman
Osborne Clarke LLP

Andrew, in answer to your questions:-

  1. Yes an English grant of probate will be accepted by the Scottish Land Registry. See s2(3) Administration of Justice Act 1971.
    2 Yes the English Trust would be valid and can hold Scottish land. You would have to be careful when you change Trustees however to make sure the title to the Scottish land transfers to the new Trustees.
  2. The legacy of residue would remain valid. It is not voidable. The children have the right to claim their “Legal Rights” from their parents estates. Legal Rights are a debt against an estate and currently only claimable against moveable estate, so houses, land etc are not subject to legal rights. Children do not have to claim their legal rights and can discharge their claim either after or before a parent dies if they chose to do so. They should be advised by an independent solicitor.
    I hope this helps.
    John McArthur
    Gillespie Macandrew LLP, Edinburgh

Hello John,

I have the same question raised by Andrew as point 2 -is your answer still valid as at today’s date?

I had been wondering whether the best advice would be to get the client to make a Scottish Will dealing solely with passing land into life interest trust- but if it can be done in the English Will I feel I really ought to know this.

Thank you