Friday, 15 July 2016
Scottish Law - No Room For Smoke & Mirrors
My first realization that Scottish law differed substantially from English law came when I was a teenager planning to run away to Gretna Green to marry an impossibly handsome young man called Peter Grenville. We were to meet in the foyer of the Cumberland Hotel at six pm before catching a fast train North. He clearly was not as keen on the idea as I was because he failed to keep the date. I waited until just after nine and then went home disappointed and disillusioned. I recall that his justification later (because I did pursue him for explanations) had something to do with his sister organizing a Fireworks Party for his birthday. It was an excuse that did not seem good enough at the time and to be honest, it still doesn’t cut the mustard. I don’t know if young people still run off to Gretna Green or not but I have become aware recently that Scottish law is still at variance with English. Take the edicts pertaining to Wills for example. In England a marriage causes any previous Will to become invalid and a new one must be made. This is not the case North of the Border where also a Will can be signed by the Testator without any witnesses and if there is a witness he or she can even be a beneficiary although this needs to be clarified in a written statement. None of this sits easily with we Southerners. In Scotland the term `children’ refers not only to standard run of the mill sons and daughters but also to any illegitimate and adopted children although not to stepchildren. If you want a stepson or stepdaughter to receive part of your estate you must specify this clearly when you write your Will. The age of collecting any legacy would also seem to be extraordinarily young to the English, Scottish girls can inherit at twelve and boys at fourteen if you don’t add a clause dictating they should be somewhat older. Under Scottish law, a spouse and children have `prior rights’ meaning they cannot be deliberately excluded from a Will no matter how much they have upset you. They absolutely must inherit house, furnishings and cash to a certain amount and once these prior rights have been attended to they also have the right to fifty per cent of what is called `moveable estate’ which includes cash and investments. What is left, including property such as a second house can then be distributed to others as the maker of the Will sees fit. The Testator’s spouse is entitled to be the sole executor of the estate unless others have been named as Reserves and again, this idea would make an Englishman squirm a little. And whilst in England you must be over eighteen years of age to make a legal Will, in Scotland astonishingly you need only to have reached your twelfth birthday for your Will to be taken seriously. My friend Joanna who spent a great many years helping Aucklanders write Wills, says that all this is because strangely enough, Scottish law is based more firmly upon Roman Law than the mish-mash that has been allowed to develop in England. `Generally speaking,’ she said, draining her coffee cup, `The Scots are much more sensible in the way they go about matters, particularly the things that really matter.’ Well she should know, apart from anything else she grew up in a little town to the North of Gretna Green.