For almost thirty years, there have been special rules about signing a Will in Scotland. In 1995, The Requirements of Writing (Scotland) Act, (the 1995 Act). Before this act came into effect, the rules surrounding signing a Will were not entirely clear.
What are the current rules about signing a Will in Scotland?
A testator must sign the Will on every page and at the end of a Will for it to be valid and self-proving. The testator is the person who makes a Will. A witness must also sign the Will on the last page. When a testator signs a Will in this way, no further evidence will be required to prove its validity.
The rules about signing a Will are different in other parts of the UK.
Why is it important that the testator signs a Will in this way?
One of the key reasons it is important that a Will is signed on every page is that it avoids any challenge that pages have been substituted in the Will. If the testator has signed every page, that indicates that the page is meant to be part of the Will. The requirement to sign at the end of the Will in the presence of a witness completes the self-proving nature of the Will.
What happens if a Scottish Will is not properly signed?
Sometimes, especially with home-made Wills, a Scottish Will might not be properly signed. However, it is possible to cure a signing defect if the Will is only signed and witnessed on the last page. To achieve validity, you need to make an application to the court, asking that the Will be considered valid. This will take time, involve the witness to the Will and will be expensive.
Can an improperly signed Will always be made valid?
Unless a defectively signed Will meets a specific criterion, it is unlikely that it will be considered valid. The recent case of Christopher Knapman and Patrick Wadeson explains the dangers of an incorrectly signed Will.
In this case, the deceased, Jean Dorothy Weatheritt had prepared a three-page typed Will. The pages had been stapled together. The first page was dated 27 January 2016 and was signed and witnessed. It made no reference to any beneficiaries or to any additional pages. The second page was headed “Financial State as at November 2015” and contained a list of assets. It was not signed and there was no reference to the other two pages. The final page set out instructions in relation to beneficiaries and was dated 24 November 2015. Again, there was nothing linking this page to the other two pages.
After reviewing the evidence, the sheriff decided that the last Ms Weatheritt had not complied with the signing requirements of the 1995 Act. In particular, the Will had been signed on the first page, not the last page. Whilst there are provisions for a defective Will which has been signed and witnesses on the last page but not signed on any other page, there is no provision to allow a Will signed only on the first page to be declared valid. In addition, the dates of the second and third page were troublesome because they were not contemporaneous with the first page.
What happens if an incorrectly signed Will cannot be declared valid?
If a defectively signed Will cannot be declared valid, the estate is treated as being intestate. That means the estate will be dealt with as if the Will never existed. When an estate is intestate, it must be distributed under the law of succession. There might be considerable divergence between what is stated in a defective Will and what the law of succession dictates as to who should share in the estate.
How do I make sure my Will is properly signed?
The best advice we can give you is to avoid homemade Wills. Consult a solicitor to ensure your will is properly prepared. Your solicitor will explain the requirements for signing a Will in Scotland. They will guide you through the process of drawing up your Will and ensure your Will is properly signed.
Specialist Will Writing Solicitors in Rutherglen, Glasgow
Carr Berman Crichton provides help and advice to clients in Rutherglen, Glasow and the surrounding areas of Lanarkshire and across Scotland. Our solicitors ensure that your Will is properly drawn up and give you clear directions for signing a Will in Scotland.
If you would like help and advice on drawing up a Will or, if you already have a Will, checking that it is valid, please do not hesitate to contact us.
If you like this, you may also be interested in these articles:
Don’t Make Handwritten Wills – if you do, don’t make more than one!
Donating to charity through a Will
Thinking about updating your Will? Don’t do it on the back of an envelope!
