Validity of an English will in Scotland?

[Graeme]

We (wife and self) had wills prepared, some years ago, whilst living in
England. Very basic - everything to each other, failing whom, child.

Since then, we have moved to Scotland. Do our English wills still
apply, in the event of the death of one or both of us, or should we
prepare new 'Scottish' wills?
--
Graeme

[Stuart A. Bronstein]

The general rule in most countries is that a will that is valid where
executed will be recognized elsewhere as well. I don't know if that
is the rule in Scotland, but it is the rule in England.

--
Stu
http://DownToEarthLawyer.com

[Pelican]

"August West" <aug...@kororaa.com> wrote in message
news:87a95kv...@news2.kororaa.com...

> They will still be valid, inasmuch as changing domicile does not
> invalidate them, and the required formalties of an English will are
> stricter than Scottish ones.
>
> However, Scots law, and in particular the matter of Legal Rights, will
> have an impact on the actual effect of the wills.
>
> Broadly, in your case, Legal Rights provide that the surviving spouse is
> entitled to one-third of the deceased's moveable estate, and your child
> is entailed to one-third of the deceased's moveable estate if the
> deceased left a spouse or civil partner, or to one-half of it if the
> deceased left no spouse.
>
> These rights, if excercised, are satisfied before the distribution
> specified in the will takes effect.
>
> However, an important caveat is that a person can inherit via legal
> rights or via a testamentary legacy - but not both. They must choose
> between them.
>
> It might be worth considering drawing up Scottish wills.

Or creating a form of "living will" ie deal with your assets by controlling
what happens during your life and after your death. It is not necessary
that your assets must be subject to the legal vagaries of where you happen
to live or die.

[Judith]

On Sat, 27 Sep 2014 22:21:16 +0100, August West <aug...@kororaa.com> wrote:

>
>The entity calling itself Graeme wrote:
>>

>They will still be valid, inasmuch as changing domicile does not
>invalidate them, and the required formalties of an English will are
>stricter than Scottish ones.
>
>However, Scots law, and in particular the matter of Legal Rights, will
>have an impact on the actual effect of the wills.
>
>Broadly, in your case, Legal Rights provide that the surviving spouse is
>entitled to one-third of the deceased's moveable estate, and your child
>is entailed to one-third of the deceased's moveable estate if the
>deceased left a spouse or civil partner, or to one-half of it if the
>deceased left no spouse.
>
>These rights, if excercised, are satisfied before the distribution
>specified in the will takes effect.
>
>However, an important caveat is that a person can inherit via legal
>rights or via a testamentary legacy - but not both. They must choose
>between them.
>
>It might be worth considering drawing up Scottish wills.

Jobs for the boys ;-)

[Janet]

In article <m07mck$aev$1...@dont-email.me>, water-
bi...@sea.somewhere.org.ir says...

AFAIK, a "living will" dies with its owner and does not trump Scottish
inheritance law.

Janet

[Stuart A. Bronstein]

Janet <h...@nowhere.co.uk> wrote:
> water...@sea.somewhere.org.ir says...
>> "August West" <aug...@kororaa.com> wrote

>> > It might be worth considering drawing up Scottish wills.
>>
>> Or creating a form of "living will" ie deal with your assets by
>> controlling what happens during your life and after your death.
>
> AFAIK, a "living will" dies with its owner and does not trump
> Scottish inheritance law.

I suspect he meant a living trust, which does survive the death of
the person who set it up.

Are trusts recognized under Scottish law? They are not recognized in
non-English speaking civil law countries as far as I am aware.

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

Judith <jmsmi...@hotmail.co.uk> wrote:

> August West <aug...@kororaa.com> wrote:
>
>>It might be worth considering drawing up Scottish wills.
>
> Jobs for the boys ;-)

Perhaps. But since out-of-country wills are recognized as long as
they were valid where created, you can do your own will for free, as
long as you come to California to execute it.

http://www.downtoearthlawyer.com/forms/CA_Statutory_Will.pdf

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

August West <aug...@kororaa.com> wrote:

> Stuart A. Bronstein wrote:
>>
>> Are trusts recognized under Scottish law? They are not
>> recognized in non-English speaking civil law countries as far
>> as I am aware.
>

> They are, but they are subtly different from common law ones
> (and Scots law doesn't see and create resulting trusts
> everywhere, as common lawyers are wont to).
>
> Indeed, Scots law trusts are a focus of interest from civilian
> lawyers, as their philosophical underpinning of are civilian,
> and quite different from that of common law.

Thanks for the information. Trusts are also recognized in Louisiana
in the USA, even though it is a civil law jurisdiction. That's
because trusts are encouraged under federal tax law.

--
Stu
http://DownToEarthLawyer.com

[Pelican]

"Janet" <h...@nowhere.co.uk> wrote in message
news:MPG.2e921de1...@news.individual.net...

A "living will" is not a will. It's shorthand for a means of dealing with
your property while you are alive in such a way that you achieve a transfer
on your death in a way you way, regardless of the inheritance law of any
country.

[Pelican]

"Stuart A. Bronstein" <spam...@lexregia.com> wrote in message
news:XnsA3B658E4F492Fs...@130.133.4.11...

Why is execution in California required?

[Pelican]

"Stuart A. Bronstein" <spam...@lexregia.com> wrote in message

news:XnsA3B65832AFBE6s...@130.133.4.11...

> Janet <h...@nowhere.co.uk> wrote:
>> water...@sea.somewhere.org.ir says...
>>> "August West" <aug...@kororaa.com> wrote
>
>>> > It might be worth considering drawing up Scottish wills.
>>>
>>> Or creating a form of "living will" ie deal with your assets by
>>> controlling what happens during your life and after your death.
>>
>> AFAIK, a "living will" dies with its owner and does not trump
>> Scottish inheritance law.
>
> I suspect he meant a living trust, which does survive the death of
> the person who set it up.

That's too prescriptive. I mean any method of dealing with property during
your life. It could be a trust. It could be a small company.

> Are trusts recognized under Scottish law? They are not recognized in
> non-English speaking civil law countries as far as I am aware.

You would deliberately use a method appropriate for the countries involved.
It doesn't have to be expensive, or particularly complicated. It does
require planning.

[Janet]

In article <m09vvr$g1h$1...@dont-email.me>, water-
bi...@sea.somewhere.org.ir says...

> > bi...@sea.somewhere.org.ir says...
> >>
> >> "August West" <aug...@kororaa.com> wrote in message
> >> news:87a95kv...@news2.kororaa.com...

> >> > It might be worth considering drawing up Scottish wills.
> >>
> >> Or creating a form of "living will" ie deal with your assets by
> >> controlling
> >> what happens during your life and after your death.
> >
> > AFAIK, a "living will" dies with its owner and does not trump Scottish
> > inheritance law.
>
> A "living will" is not a will. It's shorthand for a means of dealing with
> your property while you are alive in such a way that you achieve a transfer
> on your death in a way you way, regardless of the inheritance law of any
> country.
>

In Scotland where the OP is, "living will" is shorthand for an
advance medical directive, which has nothing whatever to do with
property inheritance.



Janet

[Stuart A. Bronstein]

"Pelican" <water...@sea.somewhere.org.ir> wrote:
> "Stuart A. Bronstein" <spam...@lexregia.com> wrote

>> Judith <jmsmi...@hotmail.co.uk> wrote:
>>> August West <aug...@kororaa.com> wrote:
>>>
>>>>It might be worth considering drawing up Scottish wills.
>>>
>>> Jobs for the boys ;-)
>>
>> Perhaps. But since out-of-country wills are recognized as long
>> as they were valid where created, you can do your own will for
>> free, as long as you come to California to execute it.
>>
>> http://www.downtoearthlawyer.com/forms/CA_Statutory_Will.pdf
>
> Why is execution in California required?

It may not be. But it is certainly valid in California. But if it
is executed somewhere that it does not comply with the legal
formalities, it is likely not to be accepted as valid in the
jurisdiction where executed.

I once had a holographic will admitted to probate in England.
While not ordinarly valid there, it was executed in California
(where it is valid) so it was accepted by the court in England.

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

Janet <h...@nowhere.co.uk> wrote:

>> A "living will" is not a will. It's shorthand for a means of
>> dealing with your property while you are alive in such a way
>> that you achieve a transfer on your death in a way you way,
>> regardless of the inheritance law of any country.
>>
> In Scotland where the OP is, "living will" is shorthand for
> an
> advance medical directive, which has nothing whatever to do with
> property inheritance.

That's the way we think of it in the USA, too.

--
Stu
http://DownToEarthLawyer.com

[Pelican]

"Stuart A. Bronstein" <spam...@lexregia.com> wrote in message
news:XnsA3B6BABA384BDs...@130.133.4.11...

> "Pelican" <water...@sea.somewhere.org.ir> wrote:
>> "Stuart A. Bronstein" <spam...@lexregia.com> wrote
>>> Judith <jmsmi...@hotmail.co.uk> wrote:
>>>> August West <aug...@kororaa.com> wrote:
>>>>
>>>>>It might be worth considering drawing up Scottish wills.
>>>>
>>>> Jobs for the boys ;-)
>>>
>>> Perhaps. But since out-of-country wills are recognized as long
>>> as they were valid where created, you can do your own will for
>>> free, as long as you come to California to execute it.
>>>
>>> http://www.downtoearthlawyer.com/forms/CA_Statutory_Will.pdf
>>
>> Why is execution in California required?
>
> It may not be. But it is certainly valid in California. But if it
> is executed somewhere that it does not comply with the legal
> formalities, it is likely not to be accepted as valid in the
> jurisdiction where executed.

That seems the general rule. I occasionally have documents (including
wills) executed in accordance with the legal formalities of a place but not
necessarily executed in that place. For that purpose, a power of attorney
is a very useful instrument. Once executed, the document stands, and is
supported with the presumption of regularity.

[Pelican]

"Janet" <h...@nowhere.co.uk> wrote in message

news:MPG.2e92b5168...@news.individual.net...

Which goes to show that, when in Scotland, never trust them English.

[Chris R]

>
>
> "Pelican" wrote in message news:m0ahv5$qtu$1...@dont-email.me...

>
>
> "Stuart A. Bronstein" <spam...@lexregia.com> wrote in message
> news:XnsA3B6BABA384BDs...@130.133.4.11...
> > "Pelican" <water...@sea.somewhere.org.ir> wrote:
> >> "Stuart A. Bronstein" <spam...@lexregia.com> wrote
> >>> Judith <jmsmi...@hotmail.co.uk> wrote:
> >>>> August West <aug...@kororaa.com> wrote:
> >>>>

> > It may not be. But it is certainly valid in California. But if it
> > is executed somewhere that it does not comply with the legal
> > formalities, it is likely not to be accepted as valid in the
> > jurisdiction where executed.
>
> That seems the general rule. I occasionally have documents (including
> wills) executed in accordance with the legal formalities of a place but
> not necessarily executed in that place. For that purpose, a power of
> attorney is a very useful instrument. Once executed, the document stands,
> and is supported with the presumption of regularity.
>

You have wills executed by power of attorney? That would not be valid in
English law.
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Chris R]

>
>
> "Pelican" wrote in message news:m0ai1l$scn$1...@dont-email.me...

>
>
> "Janet" <h...@nowhere.co.uk> wrote in message
> news:MPG.2e92b5168...@news.individual.net...
> > In article <m09vvr$g1h$1...@dont-email.me>, water-
> > bi...@sea.somewhere.org.ir says...
> >> > bi...@sea.somewhere.org.ir says...
> >> >>
> >> >> "August West" <aug...@kororaa.com> wrote in message

> >> A "living will" is not a will. It's shorthand for a means of dealing
> >> with
> >> your property while you are alive in such a way that you achieve a
> >> transfer
> >> on your death in a way you way, regardless of the inheritance law of
> >> any
> >> country.
> >>
> > In Scotland where the OP is, "living will" is shorthand for an
> > advance medical directive, which has nothing whatever to do with
> > property inheritance.
>
> Which goes to show that, when in Scotland, never trust them English.

That's my understanding in England, too.

[Pelican]

"Chris R" <inv...@invalid.munge.co.uk> wrote in message
news:IMCdnbGMvciAjLTJ...@brightview.co.uk...

>
>>
>>
>> "Pelican" wrote in message news:m0ahv5$qtu$1...@dont-email.me...
>>
>>
>> "Stuart A. Bronstein" <spam...@lexregia.com> wrote in message
>> news:XnsA3B6BABA384BDs...@130.133.4.11...
>> > "Pelican" <water...@sea.somewhere.org.ir> wrote:
>> >> "Stuart A. Bronstein" <spam...@lexregia.com> wrote
>> >>> Judith <jmsmi...@hotmail.co.uk> wrote:
>> >>>> August West <aug...@kororaa.com> wrote:
>> >>>>
>
>> > It may not be. But it is certainly valid in California. But if it
>> > is executed somewhere that it does not comply with the legal
>> > formalities, it is likely not to be accepted as valid in the
>> > jurisdiction where executed.
>>
>> That seems the general rule. I occasionally have documents (including
>> wills) executed in accordance with the legal formalities of a place but
>> not necessarily executed in that place. For that purpose, a power of
>> attorney is a very useful instrument. Once executed, the document
>> stands, and is supported with the presumption of regularity.
>>
> You have wills executed by power of attorney?

No. I'm too risk averse.

> That would not be valid in English law.

That's an interesting point. First, it might depend on what the local law
is. Second, there might be a difficulty in anyone thinking about
challenging an apparently valid will knowing the facts of the actual
execution of the will.

[Percy Picacity]

My understanding of a living will in the most recent sense is that it
is a document expressing one's wishes regarding various kinds of life
saving or maintaining medical treatment. It is designed to apply when
one temporarily or permanently loses capacity to make the relevant
decisions.

Your meaning seems to relate to some form of in-life property disposal,
possibly involving trusts. Do you have any reference to how this
workss, as a matter of interest?




--

Percy Picacity

[Pelican]

"Percy Picacity" <k...@under.the.invalid> wrote in message
news:7s81k0....@news.alt.net...

It has various descriptors - estate planning, intergenerational transfers,
inter vivos trusts, "living wills", and so on. Taxation may sometimes have
some role. Trusts have been commonly used, but so are small companies.
They can exist locally or off-shore. The point of them is that they are
reflections of a person's (or a family's) wish to have their assets go in
particular directions, free of unwanted interventions. The arrangements
need not be complicated or expensive, but they do require some planning.

My interest in these things is partly in observing local law-makers doing
things relating to peoples' property when people die. People are free to
arrange their affairs to avoid the activity of the State (any State) in
private matters. Legally, of course. For example, issues have arisen quite
recently about probate, intestacy, local (Scottish) inheritance laws, and
claims against an estate by a "dependant". Occasionally, taxation.

[Stuart A. Bronstein]

"Pelican" <water...@sea.somewhere.org.ir> wrote:
> "Chris R" <inv...@invalid.munge.co.uk> wrote

>>> That seems the general rule. I occasionally have documents
>>> (including wills) executed in accordance with the legal
>>> formalities of a place but not necessarily executed in that
>>> place. For that purpose, a power of attorney is a very useful
>>> instrument. Once executed, the document stands, and is
>>> supported with the presumption of regularity.

I have trouble beliving that executing a will in one country, that
does not comply with the laws in that country but would be valid if
executed in another country, would be valid in the country where
executed. If that were the case, holographic wills would be valid
if executed in England, since they are valid if executed some other
place.

>> You have wills executed by power of attorney?
>
> No. I'm too risk averse.
>
>> That would not be valid in English law.
>
> That's an interesting point. First, it might depend on what the
> local law is. Second, there might be a difficulty in anyone
> thinking about challenging an apparently valid will knowing the
> facts of the actual execution of the will.

Here in the USA a will might be drafted by an attorney-in-fact, but
only if the power to do so were clearly and specifically given in
the power of attorney.

--
Stu
http://DownToEarthLawyer.com

[Stuart A. Bronstein]

"Pelican" <water...@sea.somewhere.org.ir> wrote:
> "Percy Picacity" <k...@under.the.invalid> wrote

>> Pelican said:

>>> A "living will" is not a will. It's shorthand for a means of
>>> dealing with your property while you are alive in such a way
>>> that you achieve a transfer on your death in a way you way,
>>> regardless of the inheritance law of any country.
>>
>> My understanding of a living will in the most recent sense is
>> that it is a document expressing one's wishes regarding various
>> kinds of life saving or maintaining medical treatment. It is
>> designed to apply when one temporarily or permanently loses
>> capacity to make the relevant decisions.

It appears that is the generally accepted meaning in England.

http://www.patient.co.uk/doctor/advance-directives-living-wills#
http://tinyurl.com/lvmq8a4
http://tinyurl.com/k6mw36y

>> Your meaning seems to relate to some form of in-life property
>> disposal, possibly involving trusts. Do you have any reference
>> to how this workss, as a matter of interest?
>
> It has various descriptors - estate planning, intergenerational
> transfers, inter vivos trusts, "living wills", and so on.
> Taxation may sometimes have some role. Trusts have been
> commonly used, but so are small companies. They can exist
> locally or off-shore. The point of them is that they are
> reflections of a person's (or a family's) wish to have their
> assets go in particular directions, free of unwanted
> interventions. The arrangements need not be complicated or
> expensive, but they do require some planning.
>
> My interest in these things is partly in observing local
> law-makers doing things relating to peoples' property when
> people die. People are free to arrange their affairs to avoid
> the activity of the State (any State) in private matters.
> Legally, of course. For example, issues have arisen quite
> recently about probate, intestacy, local (Scottish) inheritance
> laws, and claims against an estate by a "dependant".
> Occasionally, taxation.

--
Stu
http://DownToEarthLawyer.com

[Graeme]

In message <87a95kv...@news2.kororaa.com>, August West
<aug...@kororaa.com> writes

>The entity calling itself Graeme wrote:
>>
>> Since then, we have moved to Scotland. Do our English wills still
>> apply, in the event of the death of one or both of us, or should we
>> prepare new 'Scottish' wills?
>
>They will still be valid, inasmuch as changing domicile does not
>invalidate them, and the required formalties of an English will are
>stricter than Scottish ones.

Thanks for all the replies, which made interesting reading. I will
mention wills to my solicitor, and complete new ones as required.

--
Graeme

[Windmill]

Judith <jmsmi...@hotmail.co.uk> writes:

>Br7uA1CImFsL+HIaq4xhBD38//AelHQGy31KP+yioJ0lVnM=
> =lCxu
>Originator: webs...@chiark.greenend.org.uk ([212.13.197.229])
>Bytes: 3598

Some of the advice proffered here sounds very much like 'jobs for the
boys', though of course it might well be good and accurate advice
(meaning that 'the system' favours outcomes which provide said jobs).

--
Windmill, Til...@NoneHome.com Use t m i l l
J.R.R. Tolkien:- @ S c o t s h o m e . c o m
All that is gold does not glister / Not all who wander are lost