Wills are intended to provide certainty at what is often a difficult time. However, problems regularly arise where a will has not been signed (executed) properly or where its terms are unclear.
In Scotland, the formal validity of a will – and the treatment of defects or ambiguities in its signing – is governed primarily by the Requirements of Writing (Scotland) Act 1995 (the “1995 Act”).
This insight considers what can go wrong, the potential consequences, and how the law seeks to balance technical requirements with giving effect to a person’s intentions.
Legal requirements for a valid will
For a will to be valid in Scotland, it must comply with the Requirements of Writing (Scotland) Act 1995. At its most basic, this means the will must be in writing and demonstrate clear testamentary intention — that is, an intention by the testator (the person making the will) that the document is to have legal effect as their will.
The will must also be subscribed by the testator. “Subscription” means that the testator signs (or makes a mark) at the end of the document. This requirement is designed to show that the will is complete, and that the testator intended to give effect to everything that precedes the signature. Without subscription, a document cannot operate as a will.
Legal requirements for a valid, self-proving will
Although witnesses are not required for a will to be legally valid in Scotland, additional execution steps are required for a will to be treated as “self-proving”.
A self-proving will is one that, in addition to being signed by the testator, has been witnessed. This involves the witness seeing the testator sign their will then adding their full name and address to the document, as well as adding the date and place of signing. These formalities allow the court to accept the will without further evidence or procedure. If any of these elements are missing, the will is still valid, but it is not self-proving.
Why should a will be self-proving?
A self-proving will is accepted by the court without the need for any additional process or evidence after death. This avoids the need for an application to court to “set up” the will.
As a result, confirmation can be obtained more quickly, reducing delay at what is often already a difficult time for executors and families. It also reduces costs, as it avoids the additional legal work after death and expense associated with curing defects in execution.
Common problems
Problems most commonly arise where a will has been prepared without legal advice or where changes are made after execution. Common execution issues include: the signature appearing in the wrong place, signatures missing from one or more pages of the will, or the will only being signed on the final page rather than on every page.
Other frequent issues include handwritten amendments made after the will has been signed, the absence of witnesses, or the failure to include a date or place of signing. Any of these defects can prevent the will from being self-proving.
What happens if a will is not signed correctly?
Where there are informalities in execution — for example, a will that is signed but not self-proving — the court can give effect to the document if satisfied that it was intended to have legal effect as a will. This involves a fact‑specific assessment and requires an additional application to court before the court will issue the grant of confirmation. While purely technical defects are often capable of being remedied, this process causes delay, cost and uncertainty.
This process can only apply to a valid will which has not been signed correctly. A will which is not signed or does not demonstrate testamentary intent cannot be remedied by the court.
What if something is written on the will after it is signed?
Anything written or typed on a will after it has been signed is not treated as part of the will unless the additional text is also signed by the testator. To be self-proving, such changes should also be witnessed and include the date and place of signing.
If alterations are not properly executed, they will either be ignored entirely or require to be set up by the court, again resulting in delay and additional cost. Changes to a will should therefore always be made formally, either by re-executing the will or preparing a properly executed codicil.
Reducing the risk of problems with execution
Part of the service provided by lawyers is to ensure that a will is drafted and signed correctly, reducing the risk of problems arising after death. Issues with execution are most commonly seen in handwritten wills, DIY will packs and wills prepared by non‑lawyer will writers, where formal requirements are often misunderstood or overlooked. This is particularly common because the signing requirements for wills are different in Scotland and England/Wales, and documents prepared by those without the necessary expertise in Scots law, may not be self-proving.
Many of these issues can be avoided through careful drafting, correct execution and regular review of wills. Legal advice can significantly reduce the risk of unintended consequences and help ensure that the testator’s wishes are carried into effect as intended. While the law provides some flexibility to deal with informalities or errors in execution, this will result in delay, additional cost and uncertainty until the matter is resolved. Ensuring a will is properly prepared and executed remains the most effective way of safeguarding a person’s wishes.
For more information, please get in touch our wills and estate planning lawyers.
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