Scottish Will vs English Will: Key Differences (2026 Guide)

Scotland and England operate two entirely separate legal systems for wills and succession. A Scottish will vs an English will is not a small variation in wording — the signing rules, the rights of family members, and even the name of the court process all differ.

This plain-English guide explains the key differences for normal Scottish families, anyone who has moved across the border, and anyone with property or relatives on both sides. If you simply want to get your own will in place, you can make a Scottish will online here for a fixed price. Otherwise, read on and take your time.

Contents

• 1. The short answer
• 2. Two separate legal systems
• 3. Side-by-side: Scotland vs England
• 4. Signing and witnessing
• 5. Confirmation vs Probate
• 6. Legal Rights and Prior Rights in Scotland
• 7. Family provision claims (1975 Act)
• 8. Cohabitants in Scotland
• 9. Inheritance Tax — the same UK-wide
• 10. Cross-border families: which will do you need?
• 11. When to speak to a Scottish solicitor
• 12. Quick FAQs about Scottish wills vs English wills

1. The short answer

If you live in Scotland, own Scottish property, or expect Scots law to govern your estate, you need a will written for Scots law. An English will is not automatically invalid in Scotland, but the formal signing rules, the rights of your spouse and children, and the executor process are all different.

For most Scottish families, the safest, simplest answer is to put a Scottish will in place that follows Scots law from start to finish.

2. Two separate legal systems

Scotland and England & Wales have always had separate succession law. The Wills Act 1837 — the foundation of English will-making — explicitly excludes Scotland. Section 35 of that Act states:

“This Act shall not extend to Scotland.”

Scots law on wills is governed by its own statutes, in particular the Requirements of Writing (Scotland) Act 1995 for formal validity, and the Succession (Scotland) Act 1964 for who inherits what. These are Scottish statutes for Scottish estates.

3. Side-by-side: Scotland vs England

The table below summarises the differences most people care about. Each row is explained in detail in the sections that follow.

4. Signing and witnessing

This is the biggest practical difference between a Scottish will and an English will.

In Scotland, section 2(1) of the Requirements of Writing (Scotland) Act 1995 states a will is validly executed if it is subscribed by the granter — in plain English, signed by the person making the will at the end. The Act is explicit: “nothing apart from such subscription shall be required for the document to be valid as aforesaid”.

A witness is not required for a Scottish will to be legally valid. A witness is used to make the will probative (self-proving) under section 3, so the executor can rely on it without further proof of authenticity. In practice, almost every Scottish will is signed in front of a witness for this reason.

In England and Wales, section 9 of the Wills Act 1837 is much stricter. An English will is not valid unless it is signed by the testator in the presence of two or more witnesses present at the same time, and each witness attests and signs the will. Miss that step and the will fails.

For more detail on the Scottish rules, see our guide to how to sign a will properly in Scotland.

5. Confirmation vs Probate

After someone dies, the executor needs legal authority to deal with the estate — to close bank accounts, sell or transfer property, and pay debts.

• In Scotland the executor applies to the Sheriff Court for Confirmation. The mechanism is set out in the Succession (Scotland) Act 1964, which refers throughout to “confirmation of executors”.
• In England and Wales the executor applies for a Grant of Probate (or Letters of Administration if there is no will) from the Probate Registry.

The names are different and the paperwork is different, but the underlying purpose is the same: authorise the executor to act. If you have an English will and your estate ends up administered in Scotland, your executors will still need Confirmation. For a deeper look at the executor’s role, see our guide to executors in Scottish wills.

6. Legal Rights and Prior Rights in Scotland

This is where Scots law is most clearly different from English law.

Legal Rights are defined in section 36(1) of the Succession (Scotland) Act 1964 and include jus relicti, jus relictae and legitim — the claims of a surviving husband, wife and children respectively. They are calculated from the net moveable estate (money, investments, vehicles and possessions, but not land or buildings) under section 10(2). A will cannot completely cut a spouse, civil partner or child out of these rights.

Prior Rights apply where someone dies without a Scottish will. The surviving spouse or civil partner is entitled to:

• The dwellinghouse in which the survivor was ordinarily resident, up to £473,000
• Furniture and plenishings from that home, up to £29,000
• A financial provision of £50,000 if there are children, or £89,000 if there are none

These figures are set by the Prior Rights of Surviving Spouse (Scotland) Order 2011 (SSI 2011/436), current as at 2012 — worth checking they have not been updated before relying on them. For full detail, see our guide to intestacy in Scotland.

England has nothing called Legal Rights or Prior Rights. The English testator can otherwise leave the estate as they wish.

7. Family provision claims (1975 Act)

In England and Wales, the Inheritance (Provision for Family and Dependants) Act 1975 lets certain family members apply to the court for “reasonable financial provision” if they have been cut out of a will or left too little. It applies where the deceased was domiciled in England and Wales.

The 1975 Act does not apply in Scotland. Section 27(2) is explicit:

“This Act does not extend to Scotland or Northern Ireland.”

In Scotland, family members do not need a 1975 Act claim because Legal Rights protect them automatically from the net moveable estate. The protection mechanism is different, but the underlying idea — that a spouse, civil partner or child should not be left with nothing — is built into Scots law from the start.

8. Cohabitants in Scotland

Scotland gives cohabitants a statutory route on intestacy that England does not. Under section 29 of the Family Law (Scotland) Act 2006, a surviving cohabitant can apply to the court for a capital sum or transfer of property out of the deceased’s net intestate estate.

Two important points:

• The application must be made within 6 months of the date of death
• The award cannot exceed what the cohabitant would have received as a spouse or civil partner

This is one of the strongest reasons for cohabiting couples in Scotland to have a will. The 6-month deadline is unforgiving, and the route is only available where there is no will. For more, see our guide to cohabiting couples and wills in Scotland.

9. Inheritance Tax — the same UK-wide

Inheritance Tax (IHT) is one area where Scotland and England are treated identically. IHT is a UK-wide tax administered by HMRC. There is no separate Scottish inheritance tax.

• Most estates pay no IHT if the value is below the £325,000 nil-rate band
• The standard IHT rate is 40% on the value above the threshold
• Reliefs and allowances (residence nil-rate band, spouse exemption, charity exemption) work the same way north and south of the border

The will itself does not change the IHT position. What matters for IHT is the value of the estate and how it is left, not which legal system governs the will.

10. Cross-border families: which will do you need?

The general approach for common situations is:

• You live in Scotland. Make a Scottish will. It is the cleanest fit for Sheriff Court Confirmation.
• You moved from England to Scotland with an English will. Consider replacing it. Scottish formalities, Legal Rights and Confirmation all sit better with a Scottish will.
• You live in England but own property in Scotland. Your main will is English, but Scottish property may need separate treatment. Speak to a Scottish solicitor.
• You expect to inherit Scottish property. Your own will is governed by where you are domiciled, but a Scottish executor process may apply when the time comes.

For most Scottish families with a straightforward estate, a properly written Scottish will solves all of this in one document. You can start your Scottish will online here.

11. When to speak to a Scottish solicitor

An online Scottish will fits most straightforward estates. A solicitor is worth the cost when things are more complicated. It is worth considering professional advice if:

• You have significant assets in more than one country
• You own a business or hold complex investments
• You expect a family member to challenge the will
• You want to set up a trust within the will
• Your estate is well above the IHT nil-rate band and you want tax planning advice

This guide is general information about Scots law, not legal advice. For a fuller overview, see our Scottish Wills Guide.

Quick FAQs about Scottish wills vs English wills

Is my English will valid in Scotland?

An English will signed under the Wills Act 1837 will generally be recognised, but the executor process, Legal Rights and Prior Rights all run on Scots law if the estate is administered in Scotland. For most people who have moved north, replacing it with a Scottish will is cleaner.

Do I need two witnesses for a Scottish will?

No. Under the Requirements of Writing (Scotland) Act 1995, only your signature is required for validity. A single witness is used to make the will self-proving, which is standard practice.

Does Scotland have Probate?

No. The Scottish equivalent is Confirmation, granted by the Sheriff Court. The effect is the same: it gives the executor authority to deal with the estate.

Can I disinherit my spouse or children in a Scottish will?

Not entirely. Legal Rights under the Succession (Scotland) Act 1964 give your spouse, civil partner and children a claim on the net moveable estate that a will cannot defeat.

Is Inheritance Tax different in Scotland?

No. IHT is UK-wide. The £325,000 nil-rate band and the 40% rate apply identically in Scotland and England.

I’m a cohabiting couple in Scotland — does an English will protect us?

It may operate, but Scottish cohabitants should be especially careful: without a valid will, the survivor has only 6 months under the Family Law (Scotland) Act 2006 to apply to the court. A Scottish will avoids that risk.

Ready to put your Scottish will in place?

If your situation is reasonably straightforward and you want a fixed cost and a clear process, you can start your Scottish will online here. The process usually takes around ten minutes, and your completed Will Pack is emailed to you within two business days.

If you have any questions at all, you can contact us — we’re here to help.