After meeting with clients to discuss their will instructions and preparing the documents for approval, arranging to have the documents signed is usually the easier part. However, there are certain points for consideration to ensure the will is signed in accordance with the legislation and that it is indeed the granter who is signing the will.
Formal validity of a will
Under Scots law, there are three fundamental requirements to have a valid will:
- You must have capacity to do so, both mental (be of sound mind) and legal (be at least 12 years old);
- You must demonstrate testamentary intention (this includes phrases and words used in the legal document);
- The will must be signed correctly (if executed on or after 1st August 1995, it must conform to the Requirements of Writing (Scotland) Act 1995)
The testator must sign on every page and the signature must be witnessed by an independent person (whilst also adding the date and place of signing). Ideally, the will must be 'probative' meaning that as well as the testator having signed, the will itself does enough to prove that it was the testator that signed it without the need for any other evidence. That is what drives the need for a signature on every page and the signature of a witness.
Recent case law – The late W Barclay*
Facts: William Barclay, who had been seriously unwell, died in 2018. Two days before his death he married his long-term partner, Mandy White and then executed a new will at his home. The deceased had made a previous will in 2015 (leaving residue between Ms White and Mr Barclay's son, Lee Barclay). The new will adjusted the split 75:25 in Ms White's favour. Under both wills, Ms White received a liferent of the flat.
Lee Barclay did not recognise his father’s signatures on the 2018 will. He thought that they were not genuine. He instructed two forensic document examiners to investigate. Lee raised an action to reduce the will.
Result: The burden of proving that a will is invalid lies with the party challenging it. There were three eyewitnesses to the testator signing the will. The court found their evidence consistent and credible, despite minor discrepancies in their accounts. The pursuer relied primarily on forensic evidence, from document examiners, who were for the most part against the testator having signed the will. Ultimately, Lee Barclay was unable to discharge the burden of proof, and his case failed.
This case was purely about the authenticity of the signatures and not about the formalities of execution. There was reference in the case to what are described as "guided hand" signatures – which can be valid, if the signatory intended to sign and was aware of the contents of what he/she was signing. However, it is not always easy to prove this.
This case and the recent story in the news showing a video of a daughter placing a pen in her mother's hand to sign a will in her favour are examples of the risks involved with 'DIY wills' and not fully engaging and meeting with your clients. By meeting with clients (on their own) at both the time of instruction and signing ensures the accuracy of the instructions given as well as the will being signed correctly, which makes it more difficult to be challenged.
Our wills and estate planning lawyers have vast experience with issues around capacity and setting up non-probative wills as well as changing or challenging a will. Please contact our team today if you have any questions.
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