Scottish Wills Gobbledygook Buster

Seriously, is there any area of law that has more gobbledygook than that of Wills? Legal Lab leads us gently through the arcane language of Scottish Legal Testament and translates in to plain speak.

If you want to make or update your Will but you can’t come to us one of our solicitors can visit you at home or hospital in the Scottish Borders or Edinburgh. Call 01573 225999

listed alphabetically

This is the term in English Law for the personal representative if not appointed by a valid Will. In Scots  Law the equivalent is Executor(m)/Executrix(f) Dative  that is the person who has been appointed following an application to the Court and shows that they are the person with legal authority to deal with the deceased’s estate.

A person’s land, buildings, investments, savings and personal chattels (for example, a car or jewellery) which together make up  their estate.

A person who benefits from a Will.

A gift of a particular object or cash

An organisation registered with the Charity Commission as meeting the legal definition of a charity.

Civil Partner
A person who has entered into a civil partnership with another person.

Civil Partnership
The legal relationship between two civil partners (two people of the same sex who aren’t related to each other) registered under the Civil Partnership Act 2004.

Child (referred to in a Will or intestacy)
Child of the deceased including adopted and illegitimate children but, unless specifically included in a Will, not stepchildren. A child is aged under 18 and in Scotland for certain purposes 16.

Class of persons
A group of people with a particular common link, e.g. ‘all my grandchildren’, or ‘all my first cousins’.

A document used to make minor changes to your existing Will. Your will remains unchanged in all other respects.

A person who lives with their partner, but is not married or in a civil partnership with them.

legallabweePlease note that the term ‘common law wife’ has no legal force and in not a recognised status under Scots law.

This is the name of the formal Document issued by the local Sheriff Court in Scotland to the executors whether appointed by the will (Executors Nominate) or, where there are no living nominated executors, by prior application to the Court (Executors Dative ) giving title or authority to deal with the estate.

The country you consider to be your permanent home for tax purposes, even if you actually reside elsewhere. It is distinct from nationality and place of residence.

En Ventre Sa Mere
This translates as a child within the mother’s womb, i.e. an unborn child or under Scots law a ‘child in utero’.

For inheritance tax purposes since 22 March 2006, this includes a person’s assets in their sole name, their share of joint assets, assets that they have nominated elsewhere, assets in trust (an immediate post death interest or disabled person’s interest from which they had a benefit), assets given away but in respect of which a benefit had been reserved and the value of chargeable transfers within seven years of death.

Excepted estate
Usually, if an estate has no inheritance tax to pay, it will be an excepted estate. Examples of where no inheritance tax would be due include estates that are valued at less than £325,000* or where the estate excluding exempt transfers to a spouse, civil partner or a charity is below the inheritance tax threshold. Additional relief may also be available where the estate includes an interest in a family home and where special rules apply.

The name given to a personal representative if he or she is appointed by a valid Will or codicil.

Executor Dative
The name given to a personal representative if appointed by the Sheriff court where there is no Will or the named executor(s) cannot or will not carry out the duties or the Will does not contain a valid appointment of an executor.

Executor Nominate
The name given to a personal representative if appointed by a valid Will or codicil. Depending on the value of the Estate and how this is made up the executor may have to apply for confirmation to show he or she is the person with legal authority to deal with the property of the deceased.

Free of Tax
Gifts made in the Will can be expressed to be free of tax which means that any inheritance tax on the value of that gift is borne by the residuary estate – what’s left after all bequests, legacies and debts have been paid.

*subject to change and correct as at September 2016

A person who would become responsible for your children in the event of your death before your children are under years old.

Heritable property
Land, buildings or interest in land or buildings.

Inheritance tax (IHT)
The tax payable when the total estate of the deceased person exceeds a set threshold (subject to various exemptions, reliefs and adjustments).

Where the value of debts and liabilities exceeds the value of any assets.

A person who dies without making a Will.

Your children and all generations arising from them – grandchildren, great-grandchildren, and so on.

Joint Tenants
This is an expression used in English Law where two or more people own assets as ‘Joint Tenants’ and it means that on the occasion of the death of one of them, their share in that asset passes automatically to the surviving co-owner(s) and not as part of their estate under their Will.
legallabweeThe equivalent provision under Scots Law is to specify in the title that ownership is held jointly and to the surviver i.e. ownership transfers automatically to the one who lives longest and is commonly referred to as Joint Names and Survivor.

A gift of money or objects. (See article on types of legacy for Legal Lab info)

Living Will
Sometimes called an Advance Directive it is not a Will at all in the sense discussed here. It refers to  an Advance Directive to inform your friends, family and medical professionals of your wishes about your healthcare if you become seriously ill and lose the capacity to make decisions or communicate. See article on Living Wills (LINK)

*subject to change and correct as at September 2016

In Scotland a Minor is someone under the age of 16.

Personal belongings, for example, jewellery, furniture and equipment, wine, pictures, books, cash and investments and even cars and horses not used for business. Generally anything that is not land or buildings.

Personal representative
A general term for both administrators and executors.

An English term roughly the equivalent of Confirmation in Scots Law

Clause in a Will.

What is left of the estate to share out after all the debts,  taxes, specific bequests, legacies and costs of winding up the Estate have been paid. Commonly this turns out to be the largest part of the estate and without a properly drawn up will it may not be distributed in the way you would want.

Sheriff Court
The court in Scotland that deals with ‘confirmation’. There is a Sheriff court in each district in Scotland. The Sheriff Courts for the Scottish Borders are in Selkirk and Jedburgh.

Solvent Estate
This refers to an Estate where  the value of the assets exceeds any debts and liabilities. An insolvent estate is the opposite.

Specific bequests
Particular items gifted by the Will. They may be referred to as ‘specific legacies’.

Tenants in Common
An English term. The Scots Legal term is Pro Indiviso Owners and is where more than one individual hold title to property in percentage shares, not necessarily equal.

A person who makes a Will or codicil.

A person’s Will, especially the part relating to personal property.

Testamentary capacity
In making a Will, a person must have the mental capacity to understand:

  • that a Will deals with the distribution of his or her estate after death
  • approximately what assets and liabilities he or she has
  • the people who he or she may wish to benefit from the Will.
  • Is of sufficient age to be deemed by law to have capacity.

Transsexual Beneficiary
If you want to leave property to a transsexual you may have to refer to the person in their acquired gender, not their birth gender.

A legal arrangement under which assets are looked after by trustees for the benefit of beneficiaries set out in a trust document or a Will.

A person responsible for administering a trust.

A legal document in which a person states who should receive his or her possessions or other expressions of what should happen after he or she dies

A person who has seen/witnessed the act of signature by the Will-maker and is prepared to sign/give their own details to the Will to prove they did so.

*subject to change and correct as at September 2016