Private client law: Key differences between Scotland & England

The term ‘private client’ covers many areas of law, specific to private individuals including succession planning, asset protection, trusts estates and adults with incapacity. The laws governing these areas vary significantly between Scotland and England, and understanding the nuances of both legal landscapes is key to navigating cross-border matters effectively.

Succession and inheritance rights

Scottish forced heirship (legal rights)

In Scotland, a concept known as ‘legal rights’ ensures that spouses and children have an automatic entitlement to a portion of the estate left by the deceased, regardless of the terms of any Will.

This concept does not exist in England and a testator has full testamentary freedom subject to possible claims made under the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”).

1975 Act Claims

In England, dependent relatives or other individuals, not appropriately provided for in a Will or under intestacy, may raise a claim seeking provision or further provision from an estate. There is no automatic right to inherit but the court may vary the distribution of the estate as it sees fit in the circumstances.

Order of succession on intestacy

The order of those entitled to the estate in the absence of a Will varies. In Scotland, there exists prior rights and legal rights for spouses, with a fixed order of succession provided thereafter dependent on who survives the deceased.

In England, there is the concept of a statutory legacy for spouses, with a fixed order of succession thereafter. The fixed order again is dependent on who survives the deceased but differs from that in Scotland.

Co-ownership of property (the concept of jointly owned property)

In Scotland, with the exception of trust property and where survivorship destinations are present in titles, the concept of jointly owned property does not exist. This is not the case under English law where many forms of property may be owned jointly.

A Scottish survivorship destination is akin to holding property as joint tenants in England. If Scottish property is co-owned without a survivorship destination being written into the title, this is akin to holding property as tenants in common in England.

Under English law, the surviving owner of jointly held property Will inherit such property automatically without any formal transfer being required following death. Given the limited scope as to how property may be held in joint names, briefly summarised above, this is not the case in Scotland and a formal transfer, or conveyance is more likely to be required of property which is co-owned with another.

Requirements of formal validity of testamentary writings

The structure of Wills and the language used vary between English and Scots law, as do the signing requirements for formal validity.

If an English Will is not properly signed, it fails completely, whereas, if a Scottish Will is not properly signed, in some circumstances it can be ‘set-up’ by the court, allowing its terms to take effect.

Additionally, English Wills are automatically revoked upon marriage. Scottish Wills remain in effect.

Administration of estates

In Scotland, the process of administering an estate involves obtaining Grant Confirmation from the Sheriff Court. In England, Grant of Probate or a Grant of Representation is obtained from the Probate Registry. The grants both serve similar purposes, enabling executors to administer a deceased person’s estate however the processes for obtaining each grant vary greatly.

Trust law

The use of a trust can be an effective way of managing or protecting assets for family members and future generations. Although trusts exist in both jurisdictions, various differences exist, largely relating to terminology, the roles and powers of trustees as well as trust periods, once new legislation takes effect.

Generally, trustees of English trusts must make decisions unanimously whereas trustees of Scottish trusts generally make decisions by majority.

Legislation permitting an unlimited trust or perpetuity periods as well as accumulation periods received Royal Assent on 30 January 2024. Once the legislation takes effect, if the settlor so wishes, a trust may continue indefinitely without requiring a court application to extend the trust period. These welcome changes to Scots trust law Will provide for significantly improved flexibility in the terms of how such trusts may be administered and managed.

How we can help

If you would like to know more about the key differences between Scots and English law or discuss any of the topics discussed in this article, please contact Emma Read at emma.read@andersonstrathern.co.uk