In Scotland testators are not entirely free to leave their estate to any one they choose (see ‘Legal Rights' below).
A valid Will, if executed on or after 1st August 1995, must conform to the Requirements of Writing (Scotland) Act 1995. The Act requires the document to be self proving, that is a written document, subscribed by the testator, signed on each separate page and witnessed on the last page by one identified person who is over 16 years old and has no mental impairment. However, a valid Will does not need to be self proving, provided it can be separately proven that the testator did sign the document and had capacity and testamentary intention.
1. Prior rights
A surviving spouse or civil partner has a right to:
- The deceased's dwelling house (or a share) up to a value of £300,000
- A share of the furniture, furnishings etc up to a value of £24,000
- Cash up to a value of £75,000, if there are no surviving issue (children or descendants of predeceasing children), or £42,000 if the deceased was survived by issue
2. Legal rights
If the estate has not been exhausted by the satisfaction of the surviving spouse's or civil partner's prior rights then they are also entitled to claim legal rights in the estate. Legal rights only apply to the net moveable estate (money, investments and possessions) and do not extend to the heritable property (land or buildings).
A surviving spouse or civil partner can claim a one half share of the net moveable estate if there is no surviving issue (children or descendants of predeceasing children); but only a one third share if there is surviving issue. Likewise, the surviving issue can claim a one half share of the net moveable estate between them, if there is no surviving spouse or civil partner; or a one third share if there is a surviving spouse or civil partner. The surviving issue's share is known as legitim.
3. The free estate
This is the remainder of the estate after the funeral expenses, debts and prior and legal rights have been settled. The order of those entitled is set out in detail in the Succession (Scotland Act) 1964.