Despite best efforts, even today legal language can sometimes be archaic and difficult to understand. Everyone knows lawyers love a bit of Latin. That said, there is often good reason for this. The Scottish Legal system is centuries old and can be traced back accurately from as early as the 15th century and even before. Over that time, complex areas of law and tricky concepts have evolved. Often these can be succinctly described through use of a simple word or phrase in English or in Latin.
Whilst this may be helpful for lawyers at times, this does not always help clients when it comes to putting a will in place. You will be pleased to know that we do not use any Latin in our wills but some words are still peculiar to us. With that in mind, here is a quick A-Z on terms and phrases you may come across when putting a will in place.
Often people ask when should they, and how do they, make amendments to their will. Informal amendments (e.g. a note of someone’s new married name, or a change of address) can be achieved with a simple letter or memo held alongside your will. Formal amendments to your will (i.e. substantive changes to appointments or bequests) can be made through what is known as a ‘codicil’ or by simply re-doing your will. When should you make changes? Our answer would be whenever a material change in your circumstances occurs such as the loss of an executor or beneficiary, or if your testamentary wishes change.
The person or people who will inherit from your estate.
In Scotland, a person must have ‘testamentary capacity’ to prepare a valid will. Capacity, in short, means a person’s ability to understand the nature and effect of what they are doing. The minimum age for executing a will in Scotland is 12.
Domicile means the country in which you treat as your permanent home – which may not necessarily be the country in which you are living when your will is prepared. This can have important implications for the validity of your will.
The person or people responsible for winding up your estate.
It is possible to incorporate your funeral wishes into your will but these are not binding and we always recommend that you let those who may be organising it know of your wishes.
The person or people appointed to look after any children who are under 16 at the time of the parent’s death.
When preparing your will, importantly you should give consideration to any tax which may be due on death. The main tax due on death is Inheritance Tax. There are a number of tax reliefs and exemptions which your estate may qualify for. This is it why it is so important to get your Will professionally prepared.
‘Issue’ is legal jargon for children and their children etc. If a legacy is to “Sally whom failing her issue”, then if Sally has died before the will takes effect then the legacy will go to her children. If those children were not alive the legacy would pass to those children and so on.
Jus Relicti and Jus Relictae are Latin for surviving husband and surviving wife respectively. You may see these terms when discussing or referring to ‘Legal Rights’.
Importantly, in Scots Law, your spouse and your children are legally entitled to inherit from your estate under the law, regardless of what is said in your will. This indefeasible entitlement is known as ‘Legal Rights’.
Your will is an important document and after going to the trouble of putting one in place you want to ensure it is stored safely. Many people will choose to keep the principal document with their solicitor in their wills safe and have a copy to keep at home. Alternatively, you can choose to keep it at home yourself but make sure it is in a secure, preferably water tight and fire proof safe or box and ensure that your executors know where to find it.
A legacy, also known as a bequest, is an instruction in a will conferring a benefit on someone. There are many types of legacies from money and possessions to property and residuary (see ‘Residue’ below).
Where a person wishes his or her body to be left for the purposes of medical science cannot be achieved by a simple declaration in a will.
You require to speak to your local University anatomy department who will, if appropriate, complete the necessary bequeathal documents. These papers can then be stored alongside your will. As wills are often not checked until a few days or even weeks after someone dies, it is also important that you make your close family aware of your wishes.
The amount, based on the value of your estate, below which you pay no tax as the rate is set at 0%. Currently, the nil rate band is £325,000 meaning the first £325,000 of the value of your estate is taxed at 0%. Excluding any other reliefs or exemptions, anything over £325,000 is charged at 40% and payable to HMRC. Large lifetime gifts and/or transfers in to trust may also use up some of your nil rate band.
When you come to create or update your will, the new version will revoke any prior wills you have in place. We would always recommend securely destroying the old will once the new one has been validly signed to avoid having two versions lying around which may lead to confusion down the line.
In Scots Law, a distinction is drawn between ‘moveable’ property and ‘heritable’ property. ‘Heritable property’ means property such as land and houses which is generally registered in the land register. ‘Moveable’ property means assets such as cash, bank accounts, shares and furniture. This distinction is very important when calculating legal rights claims against your estate. For Legal Rights, see ‘Jus Relicti or Jus Relictae’ above.
A common misconception is that if you die without a will, your estate will go to the Crown (the crown department that deals with this being the QLTR). This is not true. However, if you die leaving no beneficiaries to claim your estate then your estate will fall to the Crown in Scotland as ultimus haeres (literally meaning "Last Heir"). This can be avoided with a professionally drafted ‘Ultimate beneficiaries’ clause.
This is the part of your estate remaining after specific legacies and debts have been paid or made over.
A survivorship destination is a provision often inserted into the title deeds of a property which ensure that title is automatically passed to the other person or persons named on that title should one predecease. This is common in titles held by couples. Having a survivorship destination means that you are unable to convey your share of your home in your will. If you wish to leave your interest in a property to another person i.e. not the person named in your title deed, your title deeds will need to be amended. If you are unsure whether or not your title deeds contain a survivorship destination, you can get in touch with a member of our property team.
A testament (or testamentary writing) is the traditional Scottish term for what we usually call a ‘will’. The use of ‘will’ comes from the Latin phrase ‘ultima voluntas’ meaning ‘the last will’.
The final beneficiaries to inherit under your will. This is usually inserted to deal with unforeseen and highly unlikely circumstances. However, by inserting an ultimate beneficiaries’ clause, you are avoiding as far as possible your estate going to the Crown (See ‘The Queen's and Lord Treasurer's Remembrancer’ above at Q).
In Scotland, a will must be (1) “essentially valid” and (2) “formally valid”. “Essential validity” relates to capacity (see above). “Formal validity” relates to the execution of the will. As a minimum, wills must be written (purely electronic wills are not valid) and ‘subscribed’ meaning signed at the end.
Whilst a will signed at the end may be formally valid, the will may still be vulnerable to challenge. In order for the will to be ‘probative’ -which means self-proving – it must be signed at the bottom of each and every page and signed by a witnessed.
Okay, so we are stretching the lettering a little here but this is an important point. When separating or getting divorced it is incredibly important to review your will. As we discussed above, spouses have a legal right to inherit from the other’s estate. These rights can however be renounced through a separation agreement or terminated on divorce. Some divorced spouses may still wish to leave a legacy to their ex-spouse even after divorce. If so, it is important to review your will and speak to a solicitor about this. If you fail to update your will, your wishes may not be carried out.
The age of inheritance in Scots Law is 16. However, many feel that 16 is too young to inherit potentially large sums of money. Therefore, it is possible to delay this to 18, 21 or 25 incorporating a young person’s trust in to your will.
A common belief is that people do not need a will if they do not have much in terms of money/assets. However, as you can hopefully see, there are many things that a will is designed to deal with. Putting a will in place, although it may seem daunting, is pretty straightforward and it can give you total peace of mind that your affairs will be dealt with as you’ve decided.
Dying without a will is known as dying ‘intestate’ which means your assets and affairs are then dealt with in accordance with the law. As well as being a more complicated and expensive process for your family/friends during what is already a difficult time for them, it leaves you with no control over what should happen when you are gone.
If you would like to discuss putting a will in place or get advice on any of the things mentioned above, please do not hesitate to get in touch with a member of the Private Client team today.