The importance of a legally valid Will

During a case at Jedburgh Sheriff Court ( [2024] SC JED 3), Sheriff Paterson held that a homemade Will which was signed only on the first page of the document was not a valid testamentary writing. 

The Pursuers, who were appointed to act as Executors of the estate by the Will in question, argued that the signed page was attached to pages which outlined the deceased’s assets and intended beneficiaries, and therefore, should be read as a whole, valid deed. Counsel added that although the signed page was at the front of the document, it was intended to be the final page when read as a whole and was merely an error in the way the document had been assembled. The Sheriff highlighted that if this were the case, the deceased’s name would not appear until the final page of the document which would be unusual. Overall, the Sheriff determined that there was a fundamental issue with the Will which could not be cured through the courts.

So, what are the requirements to create a legally valid Will?

In Scotland, there are three fundamental requirements to create a legally valid Will.

1. Firstly, you need to have capacity. A person requires to have both mental and legal capacity to be able to make a Will. Two factors which are considered are the testator’s age, which must be at least 12 years (s.2(2) Age of Legal Capacity (Scotland) Act 1991) and the testator must be of sound mind. While there is not a strict definition of capacity, a person will be deemed to be incapable if they are unable to act, make decisions, communicate decisions, understand decisions, or retain the memory of decisions. (s.1(6) of the Adults with Incapacity (Scotland) Act 2000). A person may also be deemed to not have capacity due to mental disorders or if they are unable to communicate as a result of the physical disability.
2.  Secondly, you must demonstrate testamentary intention. While there is no requirement to include specific wording in a Will, the document must direct all or part of the testator’s estate to beneficiaries. The court will take a range of factors into account, such as the wording and specific phrases used.
3. Thirdly, the document must be signed and dated correctly. In Scotland, a signature at the foot of each page signifies that the testator has finished the document and the decisions made in the wording foregoing their signature sets out their wishes. Although it is not a requirement for a Will to be witnessed, the presence of a witness makes the document self-proving or ‘probative’. Where a Will has not been witnessed, a petition must be submitted to the court to prove the Will was in the handwriting of the testator. 

Do you need a solicitor to assist with creating a Will?

While it is possible for homemade Wills to be valid, there are major risks involved when it comes to a poorly drafted Will. In the abovementioned case, the Sheriff acknowledged that his decision would mean the estate would fall into intestacy and, as a result, be distributed in accordance with the laws of succession in Scotland. Some other issues which may arise as a result of a homemade Will include:

• The Will is more likely to be challenged on grounds of incapacity or undue influence. Alternatively, instructing a solicitor to draft your Will could minimise the risk of challenges and resulting lengthy court proceedings. Court proceedings can be extremely stressful for loved ones at an already difficult time. 
• The Will could fail in some way, resulting in invalidity. As mentioned above, this was the result of the case in question. However, a solicitor will ensure that your Will is drafted to cover as many scenarios as possible in order to reduce any part of your estate falling into intestacy and passing to individuals against your wishes.
• The Will could be insufficient for your specific circumstances. Discussing your personal circumstances with a professional solicitor allows them to advise you appropriately and create a bespoke document. This can include complex family situations, unusual estate assets and effective tax mitigation.

Get in touch

If you require any advice or assistance in relation to the creation or amendment of your Will, please get in touch with a member of our Private Client team who will be happy to assist.