6 differences between English and Scottish wills

Continuing my series of blog posts comparing wills and succession aspects across different jurisdictions, today I look at six differences between English and Scottish wills. For another wills-related comparison, read the article on differences between English and Spanish wills that I wrote on the blog a while back.

1. Age to make a will

England and Wales: as established by section 7 of the Wills Act 1837, a person must be at least 18 years or over to be able to make a will in England and Wales.

Scotland: according to section 2(2) of the Age of Legal Capacity (Scotland) Act 1991, a person aged 12 or over is deemed to have testamentary capacity and can make a will.

DID YOU KNOW? In Scotland, before 1991 a girl could make a will at 12 and a boy at 14.

Recommended reading: Minimum legal age in England and Wales, Scotland, and Spain

2. Number of witnesses required

England and Wales: the formalities for making a will (section 9 of the Wills Act 1837) require that two witnesses either attest or acknowledge the testator’s signature and then sign the will.

Scotland: only one witness is required.

3. Beneficiaries witnessing a will

England and Wales: section 15 of the Wills Act 1837 establishes that a beneficiary cannot benefit under a will that he/she or his/her civil partner attested as a witness.

Scotland: a person mentioned in a Scottish will as a beneficiary or an executor may witness the will. However, this course of action is not recommended except in an emergency, as there is a risk of an application for reducing the will under undue influence or facility and circumvention.

4. Position of signature

England and Wales: for an English will to be valid, it must be signed. ‘Signature’ is widely interpreted, and it can be a name, initials, a stamped signature, a cross, a thumb mark… The signature can be placed anywhere in the will, but it must clearly give effect to the will.

Example: in the case of Wood v Smith [1992] a homemade will signed only at the top of the first page as ‘My will by Percy Winterborne’ but where the testator’s testamentary intention was clear, was held valid.

Scotland: the signature requirements are stricter. A Scottish will must be subscribed to be valid; this means that the testator’s signature must be placed at the end of the will. Any text appearing below the signature will be deemed invalid. Moreover, for a valid will to be self-proving, it must also be subscribed at the end of every page.

Example: in the case of McLay v Farrell (1950), the testator wrote a series of legacies, signed, and then continued writing his will. The court held that the provisions before the signature were valid, but those below the signature were not, as they were not subscribed.

5. Revocation by subsequent marriage or civil partnership

England and Wales: entering into a marriage or a civil partnership in England and Wales automatically revokes a testator’s existing will. This applies except where the testator expects to marry (or enter into a civil partnership) a specific person and his/her will explicitly shows his/her intention to marry (or enter into a civil partnership).

Scotland: unlike in England and Wales, entering into a marriage or civil partnership does not revoke a testator’s existing will.

Recommended reading: The revocation of wills in English and Spanish law

6. Registration of wills

England and Wales: registration is not required, although some people register their wills with a commercial organisation such as Certainty.

Scotland: wills are normally registered in the Books of Council and Session for preservation to avoid the risk of wills being lost.