It's time to get it right

It’s time to get it right

When you die with a will, the administration of your estate should at least in theory be more straightforward than if you were to die intestate (without a will). However, what happens when the will may not be valid in terms of the law?

The Requirements of Writing (Scotland) Act 1995 sets out the law on when a will is to be determined as valid and when a will is deemed “self-proving”. This means that no further evidence is required to prove that it was granted by the person who is deceased.

What are these requirements?

• The will has been made in writing;
• The will has been made voluntarily and free from influence;
• The will has been made by a person with capacity – in the case of a will, this person has to be over the age of 12 and of sound mind; and
• The will has been signed by the grantor on every page in front of a witness who has also signed and dated the will.

If your will is not deemed to be valid or self-proving, your estate may then be distributed in terms of Intestate Succession which defeats the purpose of creating a will.

So what happens when a will that does not conform to the Requirements of Writing (Scotland) Act 1995?

The usual procedure to combat this issue would be to draft an application to the Sheriff Court seeking certification of the will. I recently worked on case where the will did not conform to the requirements of the law but was granted certification. The reasons for the will not being self-proving were as follows;

• The will was still in draft format;
• The grantor had made subscriptions on the will editing various clauses;
• The will was not signed on every page; and
• There was no witness to the will.

After taking into account our application under the Requirement of Writing Scotland (Act) 1995 as well as supporting affidavit documents, the Sheriff granted certification of the will on the basis that the will was subscribed by the deceased was intended to revoke all previous wills and testamentary writings.

This case highlights the importance of making sure your will has been completed in accordance with the law to ensure that there is no question marks over the validly of your will and what ultimately you want to happen to your estate when you die.

It’s important to note that you have the power to decide what happens to your estate on death but to do this you need a valid will.

If you require any advice or services on wills or any other private client matters please get in touch with Louis Francis or Lesley McKnight on 01224 011 700