8

If a testator makes a will while living in England, to what extent will it be valid if the testator—

  • permanently moves to Scotland, and
  • subsequently dies there without making a further will?
  • 2
    Do all the holdings (accounts, property, etc) remain in England? – James Jenkins May 27 '15 at 15:33
  • 1
    Ah good point: let's say everything's in Scotland now. – Flup May 27 '15 at 15:33
8

(I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.)

Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will.

So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law.

Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9.

There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963.

(I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.)

  • 1
    OT: I like very much your disclaimer, gg. – o0'. Jun 1 '15 at 12:15
  • 2
    That said, the question of disclaimers is up on meta at meta.law.stackexchange.com/q/6/10 and you might want to weigh in there. Also consider whether your profile disclaimer is adequate to avoid explicitly linking it in every answer. – feetwet Jun 1 '15 at 17:25
-2

In general terms, if you ask the court of a sovereign state to probate a will, the court will inquire if the will is valid under national law. If it is, the will is accepted and probated. If it's not, the will is rejected and the estate is probated intestate.

So the question is: is there any difference between English and Scots law that would make a will valid in an English court, but invalid in a Scots court?

I don't know enough about the specific national law to say in what cases, if any, this would happen, but in any case, it's surely going to depend on more specific information about the will than would happen in this case.

So the answer is: if the will is a valid Scottish will, the Scottish court will accept it. More than that is hard to say without specifics.

  • It seems that the relevant statute, cited in my answer, states the opposite of what you've said: if the will is a valid English will, a Scottish court will accept it. – Christian Conkle Jun 1 '15 at 3:39
  • The statute you cite just deals with whether the will is properly executed; that is, whether the signature is valid based on any required formalities, not whether the will is valid. – chapka Jun 1 '15 at 11:25

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