Hi all.
I had a client call in today. Basically, she currently lives in England but is moving to Scotland with her new partner with a view of getting married.
She has bought a new property with her soon to be husband. She is having Scottish Will drawn up. She also wants a Will drawn up to cover her assets in England.
She has mentioned she would like a clause to leave her share of the property in Scotland to her daughter and a right to occupy clause be added for her husband to be to remain in the property. I have advised this should be in the Scottish Will and not the English Will.
Would I be correct as there would be a conflict if the assets from Scotland ( ie the property) are in the English Will?
Under the lex situs, the Scottish property would pass under Scots law regardless of whether she’s still domiciled in E&W.
I would be tempted to make one will dealing with English assets and another one for the Scottish ones. That should also avoid any problems with the execution not falling into one of the categories in the 63 Act. It’s kind of a shame that there’s no equivalent of a Brussels IV election for testators with assets in multiple Home Nations.
I cannot see the advantage in having an English will and a Scottish will. If domiciled in Scotland, what is the advantage in having an additional English will?
Lots of people in Scotland have bank accounts in England. It is not a reason for the potentially awkward situation, in this case, of having two wills in separate UK countries.
I suspect that most testators in this position make do with a single Will. Domicile between Scotland and England is often a murky issue given the fluid border, but does make a difference given the forced heirship rules In Scotland (at least for movables). If testator is still English domiciled, or if using an English trust for English assets this would add weight to the need for a separate English Will
I suggest the counsel of perfection is to ask a lawyer, competent in the jurisdiction of the location of any significant asset, what are the pros and cons of a separate will. I have only a superficial grasp on legitim, heirs in mobilibus, jus relicti or relictae, liferenters and fiars, or warrandices. But if you understand all this and how it all works, go ahead and advise that a single will for assets in Scotland is OK. Would we expect the average lawyer in a foreign country, like Bulgaria, to understand the operation of s33 WA 1837, ss 20-22 AJA 1982, or the rule in Andrews v Partington, or to use Google as a base for advice? And that’s before you get on to the local tax system outside the UK.
As one of my former bosses told me " Keep the heid, laddie, keep the bluddie heid". (Applies also to lassies).
While reading this I have a question along a similar theme.
We have a will for a lady who lived in Scotland, moved to England and died couple of years later. Her will specifically states, my domicile is in Scotland.
Will this therefore be a Scots Law probate/estate although potentially there could be an argument of a domicile of choice in England? Does the will statement basically stop any such argument beign able to succeed?
No. Domicile is a question of law based on an assessment of the facts. A declaration of domicile is not conclusive. What a person considers his or her domicile is a fact to be weighed. The status remains important for PIL but is disappearing for tax. English & Welsh PIL applies the law of domicile as the law of succession governing an individual’s movables, unless that law’s PIL refers it back (renvoi). In some fields e.g. jurisdiction there is an alternative criterion e.g. habitual residence. I am not a great fan of the concept as a connecting factor because it is complex and capricious e.g. revival of domicile of origin and unrealistic in these days of greater international mobility
You generally only need one Will to cover UK assets. However, if there’s uncertainty about the client’s domicile or where she will be living at the time of her death, a solution I’ve used (from my time at Brodies LLP) is to prepare a Will that is valid in both Scotland and England without specifying a particular domicile. For example:
Ensure the testing clause meets English requirements, including having two witnesses.
Sign at the bottom of every page to meet Scottish Will requirements for valid writing.
This dual approach helps ensure the Will is probative in both countries. I hope that helps.