Many people simply wish to have something in writing that leaves their belongings to their loved ones when they die and on the face of it, writing a will can appear relatively straightforward. However, choosing to write your will yourself gives ample opportunity for mistakes which can seriously complicate matters after your death.
Disputes and misunderstandings can significantly delay the winding up of your affairs and the associated legal costs will deplete the overall value of the estate, especially if matters have to be resolved by going to court. We highlight some of the common mistakes and considerations of will writing below.
Formal validity of a will
Under Scots law, a correctly executed will is:-
1. In writing;
2. Put in place by a person over 12 years old and of sound mind; and
3. Signed by the person making the will (the "testator") at the end of the last page. If the testator is blind or unable to write then they may authorise and instruct another individual, who is permitted by law, to sign the will on their behalf.
In addition, it is essential that a will is 'probative' meaning that the will itself does enough to prove that it was the testator that signed it without the need for any other evidence. This is done by:-
1. The testator signing on every page; and
2. The testator's signature being witnessed by one independent adult witness. The witness should sign the will and add the date and place of signing plus their own details.
If these requirements are met, then no further evidence is required as to the authenticity of the testator's signature but without them, confirmation to a deceased's estate will not be granted until evidence has been led in court proving the will is valid and was signed by the testator.
What to include in a will
1. Executors
A common error that is made when individuals write their own will is neglecting to appoint someone to wind up their personal affairs after their death (an "executor"). Without appointing an executor, the deceased's next of kin may have to apply to the sheriff court to be appointed as executor which can lead to delays and administration expenses.
2. Beneficiaries
Setting out who is going to inherit some or all of an estate tends to be the main reason for writing a will. However, using the wrong wording can lead to beneficiaries being missed out or part of an estate being left without any destination. In the latter case, the default rules of intestacy as set out in law would apply to the division of your estate which may not reflect your wishes. You can read here how an intestate estate would be distributed.
Another common mistake is failing to include directions on what should happen if a beneficiary dies before you or before the estate is settled. If there is no instruction in the will, then part or all of your estate may again fall into intestacy and your assets distributed irrespective of your circumstances or wishes.
3. Age of beneficiaries
If you are leaving some of your estate to young beneficiaries, it is prudent to decide the age at which you would like them to inherit (the most common ages being 18 or 21). Without this direction young beneficiaries would inherit at age 16 which may not be appropriate.
You may also wish to make provision for a dependent who is unable to look after themselves. It is possible to include a trust as a way of managing and protecting assets for young or vulnerable beneficiaries. The suitability of such trusts will depend on your specific needs so seeking legal advice in these circumstances is strongly advised plus specific wording will be required to ensure your wishes are met.
4. Appointment of guardians
A will is an ideal place to name the guardian(s) who will take care of children should their parents die before they turn 16. Without this, a child's care will fall to the local authority until the deceased's next of kin applies to the court for a guardianship order.
Given the wide scope for mistakes to be made, it is best practice to instruct a solicitor to prepare your will to ensure that it is legally valid and sets out your wishes clearly.
Contributor
Senior Solicitor
