Validity of a Scottish Will Abroad and the Necessary Steps to Enforce It

Published byMirella Marchini

19th June 2023

More and more British people own properties abroad, often holding current accounts in such countries to simplify the administration of their properties. This inevitably raises the question of how to deal with such assets in case of death. A common misconception is that a Scottish Will won’t be formally valid abroad and that assets outside the UK must be dealt with by separate Wills drafted in the relevant country only.

Specific rules depend on the specific country concerned. However, most European countries have adhered to the suggestions of the Ninth Hague Conference on Private Client International Law, completed on 5 October 1961, including Italy and the UK. In the UK, section 1 of The Wills Act 1963 states that “A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national”. The same principle applies in Italy in accordance with section 48 of International Law 218 of 1995.

This means that, for instance, if a Scottish person signs a Will in Scotland drafted according to Scots Law, such a Will is considered formally valid in Italy too.

Please note, however, that having a formally valid Will in place does not necessarily imply for the provisions of that Will to be automatically and wholly applicable if its contents are in contrast with the legislation that applies to the substantial aspects of the winding up of the testator's estate.

For instance, in terms of Scots law, moveable assets will be dealt with in terms of the law of the place of domicile of the deceased whereas the heritable assets (that is, houses and land), will be governed by the law where such assets are situated.

Accordingly, if the estate of a person domiciled in Scotland includes a house situated abroad, Scots law will refer to the foreign rules to deal with such a property. Sometimes, substantive rules provide for certain categories of people closely related to the deceased to be reserved a share of their estate (“Legal Rights”). If that is the case, even in the presence of a Will, Legal Rights will prevail on the Will provisions.

Although a Scottish Will might be enforceable in another country, in order to do so, the foreign country will usually require to have the Will formally registered in that country and that usually involves a complex procedure, including having the Scottish WIll (or an extract or a certified true copy thereof) certified by the Foreign, Commonwealth and Development Office via an apostille and having it formally translated in the language of the foreign country concerned.

Using a Scottish Will to deal with the entire estate will simplify certain aspects. However, the complexity of the procedure and the cost to formally deposit a WIll (often via a foreign Notary), might be off-putting. Another available option consists of setting up a separate Will drafted by a solicitor or a Notary in the foreign country to specifically deal with the assets abroad. This option will simplify the process (the Will will not need to be apostilled, nor translated, for instance).However, if the testator has another Will in place in Scotland, dealing with UK assets, extra care should be taken to ensure that the more recent Will does not revoke any prior WIll.

It is therefore advisable to inform the foreign solicitor/Notary of the existence of the Scottish Will and have specific provisions in the foreign WIll stating that such Will only applies to the assets abroad and for any further assets the Scottish Will applies.

International aspects do complicate things and it is therefore essential to seek legal advice beforehand to prevent problems.

This article first appeared in Wire magazine