I have been writing wills for clients using software for many years, mostly English though I live in Scotland. I was using software by Countrywide Legacy which offers the option to provide a Scots or English Domicile version. I was concerned when I entered info for a Scots client and the draft included the standard ‘STEP Provisions will apply’ clause. I queried this with them and was assured that this was appropriate. But to my knowledge, STEP Provisions are only fully appropriate in E&W and NI and I am not aware of any Scottish STEP provison.
I wonder what the forum members think? What is the implication of a Scotsman having an English will and vice versa
I understand that there is no significant objection to a Scotsman having an English will, or vice versa. It might increase the costs of the administration of the estate, as the executor may need to take ongoing advice on the application of a law with which they are not familiar.
Does the software use domicile to identify the governing law of the will? If not, so that the will is governed by E&W Law regardless of domicile, I do not believe there is a problem with incorporating the STEP Standard Provisions.
However, if the governing law changes to reflect the intending testator’s domicile, I have difficulty in understanding why someone drafting a Scots Law will should include the STEP Standard Provisions which reference only E&W Law. Much of the legislation referenced in the standard provisions has no standing under Scots Law and so many of the provisions may be nullified. It seems to me that their inclusion in a non-E&W will (or trust) may be a recipe for confusion and dispute.
If the governing law follows domicile, I wonder if the software providers are able to provide an unqualified opinion from an appropriate Scottish Academic supporting their contention?
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
STEP has published two versions of the STEP Standard Provisions that are intended to apply, respectively, in England and Wales and in Northern Ireland. The terminology and structure of each version of the Provisions reflects the legal principles that govern the administration of trusts and estates in each jurisdiction and the Provisions have been drafted with specific regard to the applicable case law and statutory provisions.
At present, there is no equivalent version of the STEP Standard Provisions for Scotland. Scotland has its own distinct regime which applies to the administration of trusts and estates. Whilst there are areas of overlap with the law of England and Wales and Northern Ireland, there are also important distinctions in the applicable concepts and terminology and the governing statutes and case law that applies in Scotland.
The incorporation of the STEP Standard Provisions in wills and trusts governed by the law of a different jurisdiction brings with it a range of risks. Such risks include problems of interpretation where there is a mismatch in terminology, the possibility of substantive conflicts between the Provisions and the governing law, and the prospect of administrative difficulties leading to the need for litigation. A drafter who inappropriately incorporates administrative provisions designed to apply in a different jurisdiction will be at risk of a professional negligence claim.
Some many years ago I had three non-domiciled clients who wanted to make wills to deal with assets in three separate locations, including the UK, plus for practical reasons a fourth to cover the rest of the world.They were not psychologically prepared at that date to go down the well-trodden path of corporatising their non-UK assets under a non-resident trust with a letter of wishes and Protector. This happened eventually and reduced considerably the ambit of the non-UK wills.
It was felt desirable to have conforming administrative provisions in every will. The route taken was to use a long form precedent referring where necessary to statutes (e.g. ss 31 and 32 TA 1925) as of the UK Parliament. In two of the non-UK cases (India and Isle of Man) local lawyers were instructed to advise on the feasibility of the plan as well as probate hurdles if any. In the rest of the world case similar advice was taken just in Jersey and Bermuda as an 80:20 compromise. Care was taken to avoid inadvertent revocation in the drafting!
I would have thought a similar strategy would work as between Scotland and England and Wales. The essential reviewing process inevitably has an extra dimension. Overkill might be a fair accusation of not simply employing separate wills for each of these jurisdictions.
The trust over company solution is not for everyone, though its immediate and ongoing cost threshold may prove a sound investment later. It is difficult for some clients who have only just about learned that the company’s money is no longer theirs to genuinely accept that trust assets are not theirs either. But a different client once told me unexpectedly over lunch that he had finally taken my advice and now owned nothing save what he was wearing. Sound orthodox tax planning too until we have a GAAR that deems individuals, including the dead, to own or continue to own assets legally and beneficially owned by others. Gift with reservation legislation and draconian disclosure obligations stretching into eternity.
Previous software I used came with the instruction to remove references to E&W Law if usung for Scottish domicile.
I am at a loss to understand how a major provider of will writing software would confirm this is acceptable though. I believe members of their management team are members of STEP as well.