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Harper Macleod: Will an English Will and Power of Attorney be valid in Scotland?


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Julie Doncaster is a Partner in the private client team at Harper Macleod.
Julie Doncaster is a Partner in the private client team at Harper Macleod.

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Julie Doncaster, a Partner in the private client team at Harper Macleod, looks at some fundamental differences in the laws of the two countries when a person dies or as they make a Will or consider issues with incapacity.

In 2020, the Expert Advisory Group on Migration and Population reported a steady increase in migration of people from England to Scotland. Whether you are drawn to the picturesque landscape or crisp fresh air, taking time to check the status of your legal arrangements could save a considerable amount of time and money in the long run.

Wills

In Scotland, the threshold for what is classed as a valid Will is much higher and very different to the criteria in England. An English Will won't be immediately accepted in a Scottish Court and vice versa. It is vital to update your Will if you move across the Border so that your estate can be dealt with without additional expense or delay.

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 an estate, in Scotland they apply to the Sheriff Court for Confirmation. In England, however, executors apply to the regional English probate office for a Grant of Probate. Often banks and other institutions are only aware of the English criteria so can send out quite confusing and conflicting requirements relative to releasing estate funds.

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 apply to the court within six months from the Grant of Probate being issued and satisfy strict criteria.

Powers of Attorney

A Scottish Power of Attorney is generally considered more robust than an English one for a few reasons:

There is greater scrutiny at the start because a Power of Attorney is usually drafted by a solicitor, who will have a detailed discussion with the granter about the document to ensure that they fully understand it.

Crucially, a doctor or solicitor must certify that the granter is aware of the nature and effect of the Power of Attorney, what powers they are granting, and to whom. The assessment will also determine whether the granter is being unduly influenced or pressured to act.

A Power of Attorney will also be explicit in the powers it grants. All of this strongly contrasts with the English system, where draft Powers of Attorney can be downloaded and completed without any professional involvement. There have been some quite public criticisms of this English route in cases where vulnerable people have been exploited. Fortunately, England and Scotland both have official bodies that serve to protect a person granting a Power of Attorney.

Unlike Wills, English Powers of Attorney can be recognised in Scotland by attaching a certificate to them, which can be found on the Scottish Office of the Public Guardian's webpage.

Time to review?

It is best practice to review your Will every three to five years and after any major life changes such as moving from England to Scotland to ensure that your Will still reflects your wishes.

Harper Macleod
Harper Macleod

julie.doncaster@harpermacleod.co.uk

www.harpermacleod.co.uk


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