As a jurisdiction, Scotland forms part of the wider United Kingdom, the other constituent jurisdictions of which are England and Wales, and Northern Ireland. It has its own distinct system of laws, retained after the Act of Union in the eighteenth-century: this system is mixed, drawing on both Roman civil law tradition and English common law. Legislation which applies to Scotland is generated in both the UK Parliament, based in London, and a devolved Scottish Parliament, based in Edinburgh. Matters affecting tax and succession are considered by both parliaments, depending upon whether the relevant area of legislative competence rests at UK or Scottish level. The UK Supreme Court, the final civil Court of Appeal for all constituent parts of the UK, decides Scottish cases relating to tax and succession matters.
1 . Tax and wealth planning
At the date of writing, certain limited taxation powers have been devolved from the UK Parliament to the Scottish Parliament (see below).
Where the Scottish Parliament has legislative power over taxation, however, this primarily relates to the taxation of income (limited) and land transactions. The process of devolution, begun under the Scotland Act 1998 and its successor statutes, conferred on the Scottish Parliament the ability to set different rates and bands of income tax to those of the rest of the United Kingdom, and to create a Land and Buildings Transaction Tax as well as a Scottish Landfill Tax. Responsibility for the collection of income tax rests with H M Revenue & Customs, the UK-wide revenue collection authority, but that of the Land and Buildings Transaction Tax and Scottish Landfill Tax rests with Revenue Scotland, an entity created under statute by the Scottish Parliament.
Legislative powers relating to capital taxation rest with the UK Parliament. Reference is made in the England & Wales chapter to the principles and rates of taxation.
In respect of the taxation of income, the Scottish rates and bands of income tax apply only to those taxpayers who are identified as Scottish in terms of the Scotland Act, and only then to their income (except for dividends and bank interest). From 2016, the Scottish Parliament was granted the limited power to set a ‘Scottish Rate of Income Tax’, which means that all rates and bands of income tax on non-savings and non-dividend interest are set by that body, although the tax-free ‘personal allowance’ is still set by the UK Parliament. See the England & Wales chapter for the rates of tax set by the UK Parliament. A Scottish taxpayer, as defined in statute, may only be a taxpayer who is resident in the United Kingdom for tax purposes for the relevant tax year, as determined by the United Kingdom statutory residence rules. The individual must be:
- a Scottish parliamentarian; or
- have a “close connection” with Scotland; or
- if there is no close connection with any part of the UK, the individual must spend more days in the tax year in Scotland than any other part of the UK.
Draft guidance exists as to how the taxpayer’s “close connection” may be established, particularly where there is uncertainty as to the location of that taxpayer’s main place of residence.
For tax year 2023/24 the rates and bands of income tax applicable for non-dividend or interest-related income, announced in the Scottish government’s December 2022 budget statement, are as follows:
|Over £12,571 – £14,732
|Over £14,733 - £25,688
|Over £25,689 - £43,662
|Over £43,663 - £125,140
At the time of writing, the Budget (Scotland) Bill had yet to be enacted, but since the current Scottish government enjoys a majority in the Scottish parliament, it seems likely that the tax rates and bands above, together with the change to the Land and Buildings Transaction Tax (LBTT) Additional Dwelling Supplement referred to below, will come into effect by 6th April 2023 when the new UK tax year begins.
Of the land taxes that have been devolved to the Scottish Parliament, private individuals will deal most often with LBTT given that it is payable on the acquisition, lease etc., of residential and commercial land and buildings.
LBTT is payable at different rates, depending on the purchase price of the property, or the value of the rent payable in a lease, within different tax bands. The residential LBTT rates and bands in tax year 2023/24 are as follows:
|Up to £145,000
|£145,001 - £250,000
|£250,001 - £325,000
|£325,001 - £750,000
A relief for first time buyers is available, which increases the residential nil rate band of LBTT to £175,000. Separate non-residential LBTT rates and bands exist in respect of commercial purchases and leases.
There is an Additional Dwelling Supplement which is payable on the purchase by a taxpayer of an additional dwelling in Scotland where the buyer already has an interest (widely defined to include a right in land which is enforceable against everyone, not just one person, or other interest in or over land in Scotland, including the benefit of an obligation, restriction or condition affecting the value of such a right or interest over land in Scotland) in residential property anywhere in the world. This could include, for example, a buy to let property, or a purchase for a student family member to live in, an interest in an inherited property (at the earlier of the point when the period of estate administration ends and the point at which the property is transferred to the beneficiary), or purchases by non-natural persons, such as trusts (although the acquisition by certain types of trusts can be assessed on individual beneficiaries, meaning that it is the individual rather than the trustee who is deemed to have acquired an interest). In tax year 2023/24, as announced in the Scottish government’s December 2022 budget statement, the supplement is charged at 6% of the total purchase price, where the purchase of the relevant property is over the value of £40,000.
LBTT also applies to those leasing non-residential land and buildings in Scotland. The tax liability is calculated with reference to the net present value (NPV) of the rent payable over the term of the lease. At every three-year review of the lease, the NPV amount must be recalculated using the actual amount of rent paid during that period. The same calculation applies where the lease is assigned or is terminated. This ensures that over the lifetime of the lease the tax paid reflects the actual rent payable rather than an estimated amount. The rates of LBTT in tax year 2023/24 for leases are as follows:
|NPV of Rent Payable
|Up to £150,000
|£150,001 - £250,000
1.1. National legislative and regulatory developments
Other than changes in rates (see above) there have been no significant legislative or regulatory developments in Scotland. See the England and Wales chapter for other developments.
1.2. Local legislative and regulatory developments
Other than changes in rates (see above) there have been no significant legislative or regulatory developments in Scotland.
1.3. National case law developments
See the England and Wales chapter for case law developments which affect non-devolved taxes.
1.4. Local case law developments
There have been no recent significant local case law developments which affect devolved taxes.
1.5. Practice trends
See the England and Wales chapter for practice trends in relation to taxation issues which affect Scotland as part of the wider United Kingdom.
1.6. Pandemic related developments
See the England and Wales chapter for pandemic related developments in relation to taxation issues which affect Scotland as part of the wider United Kingdom.
2 . Estate and trust administration
Wills and estate administration
In Scotland, the applicable law affecting the overall scheme of succession to an estate is decided by reference to the domicile of the deceased. In Scots law, domicile for succession purposes is a broad concept which is decided by case law, rather than by statutory provision. That case law has derived from cases heard by both courts in Scotland and in other constituent parts of the United Kingdom.
Scotland has its own probate system and the authority to grant the Scottish equivalent of probate, known as ‘Confirmation’, is regulated by statute, having its basis in the nineteenth-century. Where the testator was domiciled in Scotland, the local (Sheriff) court has jurisdiction to confirm to the assets of the deceased in Scotland, England and Wales and Northern Ireland: it does not have any jurisdiction to grant the equivalent in respect of any assets held in any foreign jurisdiction. By virtue of the Administration of Estates Act 1971, Scottish Confirmation is recognised as the equivalent of Probate in the jurisdiction of England and Wales, ensuring that Executors applying for Confirmation in Scotland may use that grant to take title to assets in England and Wales, and vice versa. Where testators are not domiciled in Scotland but a grant of Confirmation is required to permit the succession to the Scottish estate held by non-Scottish-domiciled persons, an application may be made by Executors to the Sheriff Court in Edinburgh, which acts as a central point for such applications: in those circumstances, a separate Probate application would be required for any property owned by the deceased and situated in England and Wales.
In common with England, Wales and Northern Ireland, testators may nominate Executors under their Will, and those Executors are then responsible for the administration of the deceased’s estate on death. Executors may also be appointed, but by the Court, where the deceased died intestate (see below).
After death, it is the duty of the deceased’s Executors to gather in the assets within the deceased’s estate. In order to do so, they must pay liabilities (including any UK inheritance tax) and seek Confirmation from the local Sheriff Court.
To be used in the probate process, a testamentary writing must be valid and probative (self-proving). This requires compliance with legal requirements set out in legislation (see below) and the testator must have capacity to make the testamentary writing. In Scotland, the testator must be over the age of 12, and there is a presumption as to the capacity of the testator when the testamentary writing is made.
The Requirements of Writing (Scotland) Act 1995 sets out the basis for executing a valid Will after 1st August 1995. To be self-proving, the Will must be made in writing, subscribed by the testator, signed on each separate page and witnessed by one person who is 16 years of age or over and has mental capacity, subject to our comments at Section 2.6 below. If the Will is not valid or self-proving, it might still be possible to improve the position by the provision of evidence to the court by way of affidavit or other document, and, in more complex cases, by a hearing in open court.
If a Will is valid on the face of it (having been signed correctly and witnessed), there are three grounds under which it could still be challenged:
- Incapacity. For incapacity, the test is that the person making the Will must:
- understand the nature of the Will and its effect;
- have some idea of the extent of the property of which they are disposing under the Will; and
- be aware of the persons for whom they would usually be expected to provide and the claims that those people might have on their estate.
Testamentary capacity need not be permanent and may only be in place for the period that the person created their Will. The presumption is that each person has testamentary capacity.
- Facility and circumvention. To prove facility and circumvention, the testator must have a weakness such as old age or ill health which exposes them to influence and that weakness must have been exploited by a particular person. The greater the weakness, the less evidence is required to prove the exploitation.
- Undue influence. For a Will to be challenged as a result of undue influence, there must be a relationship between the parties that creates “a dominant or ascendant influence” involving confidence and trust. It must be established that a material or gratuitous benefit was received by the party with influence.
Testators domiciled in Scotland do not have complete freedom to dispose of their assets as they wish. Certain relatives of a deceased testator may claim ‘legal rights’ or legitim. These are a form of forced heirship, deriving from the civil law system, applicable to those who die domiciled in Scotland for succession purposes. Those who may claim legal rights are restricted to the testator’s surviving civil partner or spouse and their natural or adopted children; children of pre-deceasing children may represent their parents. Legal rights apply whether there is a Will or not.
Where a spouse or civil partner is entitled to claim, they may claim a one-half share of the net moveable estate (that is, all assets apart from land and buildings) if there are no surviving children, but only a one-third share if there are surviving children. Those surviving children may be entitled, collectively, to claim a one-half share of the net moveable estate where there is no surviving civil partner or spouse, or a one third share if there is a surviving civil partner or spouse. In certain circumstances, some planning can be undertaken in lifetime to improve the position where there is a risk of a legal rights claim on death. Care should be taken where immoveable property is owned within a partnership structure, as Scots law could treat the asset as moveable, and therefore subject to a potential legal rights claim.
Legal rights claimants may not claim after twenty years from the date of the death of the deceased. An entitlement to claim legal rights may be discharged by the potential claimant during the testator’s lifetime, or on the testator’s death, by way of deed. Previous lifetime gifts are relevant: certain lifetime gifts can reduce the share of the legal rights fund to which a claimant may be entitled. This is known as “collation”, and certain advances made by a deceased parent to a child during his or her lifetime could then be taken into account in calculating the legal rights fund.
Where the deceased did not make a valid Will, the laws of intestacy apply. The Succession (Scotland) Act 1964, as amended by further legislation in 2016, governs the distribution of an intestate estate.
Where the deceased was survived by a spouse or civil partner, those survivors are currently awarded:
- a right to the deceased’s dwellinghouse, or a share of the deceased’s dwellinghouse, up to a value of £473,000;
- a right to the furniture and plenishings of the deceased’s house, or a share of the furniture and plenishings, up to a value of £29,000; and
- a cash right to a value of £50,000 (where the deceased was survived by children), or up to £89,000 (if the deceased was not survived by children).
The net moveable estate (i.e., the estate other than land and buildings, after settlement of debts and liabilities) is then subject to any legal rights claims.
The succession legislation sets out a list of those entitled to the remaining estate after settlement of the surviving spouse or civil partner’s share, any legal rights claims and settlement of any debts. Those entitled to inherit are ranked in the following order: natural or adopted children (with representation by their own children); parents (one-half) and siblings (one-half); siblings (with representation by their own children); parents; spouse or civil partner; uncles and aunts, both maternal and paternal; grandparents; grandparents’ brothers and sisters; and so on.
A surviving co-habitant is entitled to seek an award from the estate of their pre-deceasing co-habitant only where that co-habitant has died without making a testamentary writing. The Scottish courts have discretion as to what award may be made, if any. Any such claim must be made to the Scottish courts within six months of the death of the pre-deceasing co-habitant.
Trusts and trust administration
Under Scots law, a trust constitutes a legal relationship in which property is vested in one person: the trustee. That trustee is under a fiduciary obligation to apply the property for the benefit of another person: the beneficiary. That obligation is a qualification of the trustee’s proprietary right to the trust property. There is, therefore, a tripartite relationship, which may at first appear familiar to those in common law systems, but the distinction between legal and equitable ownership, which exists in the common law countries, does not exist under Scots law. Whilst Scots law does not recognise the concept of a private foundation found elsewhere, trusts are commonly used for estate planning purposes either as inter vivos entities, or established under Wills. They are often used where assets may be intended to benefit minor beneficiaries, or those who lack capacity otherwise. They are also efficient vehicles for tax and/or asset protection planning purposes.
The most common types of trusts recognised by Scots law are:
- Liferent Trusts: the beneficiary, known as the liferenter, is conferred the right to the Trust income and to enjoy any non-income producing assets within the Trust Fund, and another beneficiary (the fiar or capital beneficiary) becomes entitled to the capital, either on the termination of the liferenter’s interest by way of lifetime event or on their death.
- Discretionary Trusts: the trustees have discretion as to which beneficiary, from a defined class of beneficiaries, may receive a benefit from the Trust Fund. The Trustees have complete flexibility as to the nature and extent of the interest which such beneficiaries may receive: they may receive capital or income, at any point, in whatever shares the Trustees think appropriate. Beyond the accumulation period, which is currently a maximum of twenty one years from the establishment of the Trust, the Trustees may not accumulate the income of the Trust.
- Bare Trusts: this is effectively a nominee arrangement under which the Trustees are owners of the Trust assets in terms of the documents of title, but the underlying beneficiary is entitled to demand from the Trustees payment of the Trust Fund at any time.
- Charitable Trusts: the trustees of such trusts hold assets for charitable purposes, which must be for the benefit of the public. The criteria as to whether a trust benefits the public are set out in the Charities and Trustee Investment (Scotland) Act 2005. An entity known as the Office of the Scottish Charity Regulator is responsible for the regulation of registered charities in Scotland.
Trusts are taxed as to income and capital under UK-wide legislation. This legislation is covered in the England & Wales chapter, and the residence of the Trust, if the Trustees are in Scotland, does not currently affect that taxation regime.
Asset Protection for Spouses and Co-habitants
Under Scots Law, assets received by way of gift or inheritance during a marriage are generally not taken into account in the event of divorce or separation of the donee. If, however, the assets were to change in nature – for example if investments were sold – they may become matrimonial property, unless the donee can make a successful claim regarding the source of funds. In order to protect the position of such donees, they may enter into a pre- or post-nuptial agreement with their fiancé or spouse. The question as to whether prenuptial agreements are enforceable in Scotland has not yet been fully tested before the Scottish courts. As a matter of course, however, the Scottish courts are reluctant to interfere with an agreement entered into between two adults of sound mind and the widely held view is that a prenuptial agreement will be upheld provided that it was fair and reasonable at the time it was entered into. Many prenuptial agreements only seek to extend the protection already offered by Scots law to gifted/inherited assets and to assets acquired with non-matrimonial funds. Against this background, it is considered unlikely that most prenuptial agreements would be considered to be unfair in the majority of cases, provided that both parties had an opportunity to seek independent legal advice on the agreement, and sufficient time to consider its terms ahead of the marriage. Similar agreements may be put in place for (prospective) cohabitants.
2.1. National legislative and regulatory developments
The Economic Crime (Transparency and Enforcement) Act 2022, enacted by the UK Parliament in 2022, includes measures to counter money-laundering, including the creation of a beneficial ownership register for overseas entities holding UK real estate. Under these measures, offshore entities which own land and/or buildings in Scotland (or the wider UK) must register with Companies House. Although trusts are not immediately caught within the scope of the provisions, overseas entities which are registrable and which have trustees as shareholders may bring trusts into the ambit of the register.
2.2. Local legislative and regulatory developments
The Scottish Law Commission recently produced a draft bill updating the existing law of trusts in Scotland, following which, at the date of writing, the Scottish government had introduced its own version of the bill to the Scottish parliament, covering not only trust law but also succession law. The trust-related provisions of the Trusts and Succession (Scotland) Bill, as introduced, replace all existing trust legislation, other than that dealing specifically with charitable and public trusts (which are governed by separate legislation). Whilst the Bill replaces all existing Scottish trust legislation, it does not give a comprehensive statutory statement of trust law in Scotland. The common law of trusts in Scotland, where it is not altered by provision made in the Bill, will continue to have effect. The principal aim of the Bill is to modernise trust law in Scotland, including – amongst other areas – trustees’ duty of care, their duty to provide information to beneficiaries and third parties, their investment powers, the power for them to resign or be removed, the powers of the Scottish courts in relation to trusts and a statutory power to allow the appointment of protectors (previously not present in any Scottish legislation). The Bill also contains a proposal to abolish the rule on accumulations referred to above. As regards succession law, amongst other provisions, the Bill clarifies the law in relation to special destinations, where individuals buy property jointly with a provision that their share in that property automatically passes to the surviving owner. The Bill sets out that if, under these circumstances, the owners were married, but later divorced, the property is not automatically inherited by the ex-spouse. It also reorders who is to inherit property when an individual dies intestate. As mentioned above, at present, spouses and children are entitled to a specific share of the property whether or not an individual has left a Will. If the individual died intestate, the Bill proposes to list the deceased’s spouse after children and grandchildren in the new statutory list of beneficiaries. It is anticipated that the Bill will be enacted during the 2023 calendar year, subject to a three-stage process of parliamentary scrutiny.
The Scottish government has indicated that it would review the laws on inheritance on intestacy and the legal rights rules as part of extensive succession law reforms and the Trusts and Succession (Scotland) Bill goes some way towards changing the rules on intestacy, but at the date of writing, there are no plans to reform the current law regarding legal rights where the distinction between immoveable and moveable assets is made.
Trustees in Scotland, as in the wider UK, are obliged, with few exceptions, to register with HMRC’s Trust Registration Service, which was introduced by the UK government in 2017 after the adoption of the Fourth EU Anti-Money Laundering Directive.
Where trustees hold land in Scotland, they may also be obliged to join the Register of Persons Holding a Controlled Interest in Land, a Scottish government initiative introduced in 2022, which is administered by Registers of Scotland, and which was intended to increase transparency in relation to how title to real estate is held.
2.3. National case law developments
See the England and Wales chapter for case law developments affecting Scotland as part of the wider United Kingdom.
2.4. Local case law developments
There have been no recent significant local case law developments in Scotland.
2.5. Practice trends
See the England and Wales chapter for practice trends in relation to trust and succession issues which affect Scotland as part of the wider United Kingdom.
2.6. Pandemic related developments
For estate administration purposes, Executors and their agents in Scotland deal with entities both at UK and devolved levels: HM Revenue & Customs and the Scottish Courts and Tribunals Service. Changes in relation to the interaction with HMRC were experienced by agents across the UK during the COVID-19 pandemic. Requirement for ‘wet’ signatures on Inheritance Tax paperwork was removed for ease of administration, but whilst the Courts of England and Wales moved towards a more digital way of applying for Probate there, relevant Coronavirus legislation in Scotland did not extend the same changes to the Scottish Court system, where Applications for Confirmation were concerned. In that regard, Scottish Commissary business is a notable exception to a wider rule. Executors and their agents in Scotland are still required to submit principal testamentary writings, docketed appropriately, together with supporting documentation to the relevant Sheriff Court on paper. Although payment of Court fees may be made electronically using bank cards or other methods, the process remains distinctly analogue.
During the pandemic, the Coronavirus (2) (Scotland) Act 2020 removed the requirement that a solicitor or notary public in Scotland witnessing a document or taking an oath/making an affirmation or declaration was in the same room as the person signing/taking the oath, where it was otherwise a requirement that the solicitor or notary public was present. This allowed the helpful practice of notarising or signing documents by video call. The relevant provisions of the 2020 Act were appealed in 2022, but the Requirements of Writing (Scotland) Act 1995, which governs the execution of legal documents in Scotland, has been amended so as to permit solicitors, advocates and notaries public in Scotland to sign or notarise as the case may be even though they may not be physically in the same place as the person signing, taking an oath or making an affirmation or declaration.
3 . Estate and trust litigation and controversy
Scotland does not tend to be a forum for a large body of trust and succession litigation. Major decisions affecting UK-wide matters, ultimately decided at Supreme Court level, tend to originate from the lower courts of England and Wales. Reference to these decisions are made in the England & Wales chapter of this volume.
3.1. National legislative and regulatory developments
See the England and Wales chapter.
3.2. Local legislative and regulatory developments
3.3. National case law developments
See the England and Wales chapter.
3.4. Local case law developments
3.5. Practice trends
See the England and Wales chapter.
3.6. Pandemic related developments
See the England and Wales chapter.
4 . Frequently asked questions
1. What regard must Scottish courts have to the decisions of courts in the wider United Kingdom?
As mentioned above, Scotland forms a constituent part of the wider United Kingdom, but has retained its own distinct system of laws. Decisions of ‘lower courts’ in the wider United Kingdom (and indeed abroad) can be taken into account in the decisions of Scottish courts, where those may be useful in the decision-making process, though decisions of such courts are not binding. Decisions of the United Kingdom Supreme Court, which is the final civil court of appeal for all constituent parts of the UK, are binding on the Scottish courts. The Judges of the UK Supreme Court comprise lawyers qualified in England and Wales, Scotland and Northern Ireland.
2. To what extent is Scotland aligned to the rest of the United Kingdom on legal and tax matters?
As we note above, Scotland retained its distinct legal system when it formed a union with England in the eighteenth-century. The nature of the union has meant that an inevitable element of shared UK-wide legislation has harmonised the law across the constituent parts of the United Kingdom. As can be seen from the content of this chapter, the taxation of capital in Scotland is broadly implemented by UK-wide legislation, with the notable exception of taxes on the transfer of land referred to above. The taxation of income is, as we note, the responsibility of both the UK and Scottish governments depending on the nature of the income in question. Scotland has its own distinct laws of property, trusts and succession which reflect its status as a mixed legal system.
3. How does the law of property in Scotland differ from that of England and Wales?
The two property law systems in Scotland and England and Wales differ significantly although there are similarities between the two. Whilst the focus of this volume does not relate direct to property law, it is important for clients purchasing property in the United Kingdom to be aware that the principal difference is that in England and Wales, property ownership is split between leasehold (ownership of the property for a limited time) and freehold (ownership of the property and the underlying land, for an unlimited period); in Scotland, no such distinction exists.
4. What is the position in Scotland as regards the use of entities such as trusts and companies to purchase property?
The tax and legal implications of the purchase of property using an entity must be carefully considered, taking advice from Scottish tax and legal advisers prior to the purchase, as the tax and legal advantages in the purchaser’s home jurisdiction may not be replicated in Scotland. The regulatory consequences of purchasing in this manner, such as registration in the beneficial ownership register for overseas entities holding UK real estate, if relevant, must also be borne in mind.