The legal processes and frameworks governing Wills and Powers of Attorney (PoAs) in Scotland are distinct from those in England and Wales. Failing to account for these differences could lead to complications in your wishes being honoured, potentially additional costs as well as emotional stress for your loved ones.
Partner Alison McKay explains the key differences you should consider when drafting Wills and PoAs in Scotland.
Wills
Legal framework – Scotland has a different legal framework governing Wills and the inheritance of an estate compared to England. It's essential to understand these rules to ensure your Will reflects your wishes.
Formal requirements - In Scotland, every page of the Will must be signed by the Will holder (testator) and witnessed by one individual to ensure its validity. In contrast, Wills in England and Wales require the signature of the testator and two witnesses to be legally binding.
Inheritance and legal rights - under Scots law, legal rights grant spouses and children an automatic entitlement to inherit the deceased’s moveable estate (such as money or personal possessions), regardless of whether there is a Will. This means you cannot disinherit a spouse, civil partner, or children of the deceased, unlike England and Wales where no such automatic entitlement exists.
Impact of marriage - any legally binding Will granted in England and Wales is immediately nullified when you are married, unless your Will expressly states otherwise. However, under Scots law, a Will remains valid and enforceable even after marriage.
Powers of Attorney
Terminology and types of PoA - in Scotland, the term Power of Attorney (PoA) is commonly used covering different areas, such as Continuing Powers of Attorney (for financial matters) and Welfare Powers of Attorney (for health and personal care). In England and Wales, these are known as Lasting Powers of Attorney (LPA’s) which serve similar purposes but use different terminology.
Legal framework – the legal framework governing PoA’s in Scotland is outlined in the Adults with Incapacity (Scotland) Act 2000, while the Mental Capacity Act 2005 governs LPAs in England and Wales. These differences affect how powers are granted, how capacity is determined, and the overall legal process.
Registration – in Scotland, all types of PoAs must be registered with the Office of the Public Guardian in Scotland before they can be used. Similarly, in England and Wales, LPA’s must also be registered, but the processes and forms involved differ between the two legal systems.
Scope and powers - Powers granted in a Scottish PoA can be highly specific, allowing the granter to outline precise limitations. However, in England and Wales, LPA’s are more standardised, although they also allow granters to impose restrictions and conditions.
When drafting Wills and PoAs in Scotland, it is crucial to be aware of these key differences to ensure compliance with Scottish law, protect the rights and interests of the granter, and finally, to achieve the intended outcome for estate distribution.
Consulting with a legal professional experienced in Scottish law is essential for navigating these complexities effectively. By doing so, you can ensure your wishes are honoured, protecting your family and loved ones while avoiding the risk of your Will or PoA being deemed invalid.
Published 30 October 2024
