There are some significant and practical differences between the laws of Scotland and England when wishing to make and write a Will.
Legal age to Make a Will
In Scotland a person is able to make a Will from the age of 12 but they must also show that they are of sound mind in order to satisfy testamentary capacity. The formal validity of a Will under Scottish law is governed by the 'Requirements of Writing (Scotland) Act 1995.
In comparison, in England and Wales, you must be 18 before you are able to make a Will. The requirements that must be satisfied to ensure the Will is valid are contained within section 9 of the Wills Act 1837.
Age of Legal Capacity
Legal Capacity and Testamentary Capacity are different. Legal capacity is recognised before the law and enables a person to make decisions as to their own life including for example entering into a contract, exercising their own legal rights and duties. The age of legal capacity in Scotland is 16 and as such a Guardian would need to be appointed to assist in such matters where you have a child or children under 16.
Since a person must be 16 in Scotland before they can enter into transactions, it follows that children who have not yet reached this age cannot make a decision on whether to claim or formally discharge legal rights either.
Testamentary capacity is an assessment of an individual's sound mind in the context of their ability to make or alter a valid Will. The test for Testamentary Capacity is not strict but rather based on case law and must be assessed on a case by case basis.
Appointing Executors
An Executor in a Scottish Will must be over the age of 16 (as this is the age of legal capacity).
There is no limit on the number of Executors appointed in a Scottish Will. This is in comparison to England and Wales, where the limit is four as that is the maximum number that can apply for probate.
Another difference is that, in Scotland, if there is a surviving spouse or civil partner, then they are automatically appointed as Executor of the estate. However, they will be given the choice of whether they wish to act in this capacity. If a surviving spouse or civil partner decides not to take the Executor appointment, then someone else can be appointed instead.
If a Will had been made at the time the Testator was married but they were to subsequently divorce, it is important to note that the ex-spouse or civil partner is considered to have died before you and so any substitute Executor appointment will in these circumstances then take effect.
Relevance of Marriage on a Will
The relevance of marriage is perhaps one of the most significant differences between the laws of Scotland and England.
In Scotland marriage does NOT invalidate a Scottish Will. So, if a Will is created and Executed before marriage, it will still be valid after the marriage. It is not even a requirement to state that the Will is being made in contemplation of marriage.
Therefore it is very important to be aware that you may have created a Will, not updated it to reflect a marriage (considering you may have also left your estate to someone else), but your Will will still be valid. This is despite the fact that you have married.
However, it is important to note that even if you have not provided for your spouse/civil partner in your Will, they will still be able to claim 'legal rights'. Legal rights in Scotland are an entitlement to a sum of money for any surviving spouse, civil partner and/or children. There is no court process involved to claim legal rights; they are automatic. If you don't have children, the surviving spouse will be entitled to one half of the net moveable estate (i.e. estate consisting of personal possessions, furniture etc) and the rest will fall to the residuary estate. If you do have children, the surviving spouse will be entitled to one third of the net moveable estate, with your children being entitled to one third and the remaining third falling to the residuary estate.
Relevance of Divorce on a Will
There is no difference between England and Scotland where Wills are concerned and the validity of the Will and clauses contained therein where there has been a divorce. If you are divorced, but your ex spouse or civil partner is mentioned in the Will, they are treated in both jurisdictions of England and Scotland as having died before you and as such would not be entitled to your estate.
It therefore follows that if you did wish to make provision in some way for your ex-spouse or civil partner in your Will, you would need to expressly state this.