Mistakes in a will are generally only discovered after the person who made the will has died. It is then usually up the deceased person's family to try to resolve matters at what will already be an emotionally difficult and stressful time. We explore some of the most common mistakes to avoid when writing a will below so that you can ensure that your wishes can be carried out after your death.

1. Failure to appoint executors

An executor is the person who deals with the administration of your estate after death. They have duties to manage your affairs after death and carry out your wishes in accordance with the terms of your will. However, it is quite common for people to forget to name executors in their will, especially if they are writing their will without consulting with a legal expert. If the will does not name an executor, or if the will does not name an alternate executor if the primary executor is unable to act due to death, incapacity or unwillingness to act, then the deceased's family may have to apply to the local sheriff court where the deceased person latterly resided to be appointed as executor. This can lead to delays with progressing the estate administration and will increase administration expenses.

2. Failure to be specific/being too specific

If the terms of a will are ambiguous, for example, if it is not clear as to what items are contained within a particular legacy or to whom the legacy is bequeathed, then this can lead to confusion as to what the testator had intended at the time they made their will. In some cases, it can lead to the will being ruled ineffective due to uncertainty.

It is also unwise to be overly specific. Another common mistake is failing to provide instructions as to what should happen if you no longer own the asset at the time of your death, or to cover the situation whereby the asset has been liquidated. For example, if your silver Mercedes has been sold prior to death, is the person to whom the car is bequeathed entitled to receive a cash equivalent or a replacement car? Although the items subject to a legacy do not necessarily have to remain in the exact form in which they existed at the time the will was made, the will would require certain wording to enable the executor to extend the bequest to the replaced article so as to prevent the legacy from lapsing.

Failure to consider such possibilities can lead to family disputes after death which can significantly delay the winding up of the estate administration. Any costs incurred to establish the legal position will ultimately deplete the overall value of the estate to the detriment of the beneficiaries, especially if matters must be resolved by going to court.

3. Failure to provide for all assets

When making a will, many people remember to specify who will inherit their main assets such as their house, cars, bank accounts and personal possessions. However, more often than not, DIY wills fail to properly dispose of any property not specifically dealt with in your will or assets acquired at a later date. It is therefore essential to include a 'residue' clause in your will which will leave any remaining assets owned by you at the time of your death to your loved ones.

4. Failure to account for 'ultimate failure' beneficiaries

Another common mistake with will writing is failing to include directions to cover what should happen if a beneficiary dies before you or before the estate is settled. If your will does not provide for this eventuality, then the result is that potentially the whole, or at least part, of your estate is left without any destination. The estate will fall into 'intestacy' which means that the default rules as set out in succession law would apply to the division of your estate, which may not reflect your overall wishes. You can read here how an intestate estate would be distributed in such circumstances.

5. Failure to sign/witness correctly

If a will is signed incorrectly then it can be fatal in terms of its validity. A common error with making DIY wills is forgetting to comply with the formal requirements under Scots law. You can read here how to write a will in Scotland.

Errors in this respect can seriously complicate matters after your death with trying to formally 'set-up' the will with the court, leading to further delays and expense.

6. Failure to update your will regularly

Finally, another common error is failing to amend your will to reflect a change to your personal or financial circumstances. We would strongly recommend that you review your wills every 3-5 years to ensure that it still reflects your current testamentary intentions especially when there are new additions to the family, a death of someone named in the will, or a windfall by way of inheritance or otherwise.

It is also important to note that, under Scots law, divorce or termination of a civil partnership that takes place after the will has been executed will cancel any testamentary provision in favour of an ex-spouse or civil partner, or indeed their appointment as executor, unless the will makes explicit provision otherwise. It is therefore vital that you consider updating your will to reflect the current position to prevent any room for confusion after such life-changing events.

As you can see, there is ample opportunity for oversights to be made if you choose to write your own will which can seriously complicate matters after your death. It is therefore advisable to instruct a solicitor to prepare your will to avoid these common mistakes and to ensure that your will is effective.


Kirstin Templeton

Senior Solicitor