Making a will can feel like one of those jobs that is easy to put off. There may be a house to think about, savings, family arrangements, children, business interests or simply the question of who should deal with everything after your death. Yet a will only works as intended if it has been made correctly.
So, what makes a will legally valid in Scotland? The answer involves a few specific legal requirements, including how the will is signed and witnessed. Scottish succession law also gives certain family members legal rights, which can affect what happens to part of an estate even where a will says something different.
Family Lawyers Glasgow can advise on making or reviewing a will and on wider private client matters. If you are unsure whether an existing will is valid, or you need to put a new one in place, speaking to a solicitor can give you some reassurance before problems arise.
What does a valid will in Scotland need to contain?
For a will to be legally valid, there are formal rules about how the document is made and signed. Under Scottish law, a person aged 12 or over can make a will, provided they have the necessary capacity to understand what they are doing. The person making the will is sometimes called the testator.
The will must be in writing. The testator must sign at the end of each page and be signed and witnessed on the last page. The Requirements of Writing (Scotland) Act 1995 sets out the general rules for signing documents in Scotland.
A will can contain detailed instructions about who should inherit, who should act as executor and, where appropriate, arrangements for children. It can also deal with particular gifts, such as a family heirloom or a sum of money.
The formalities matter, though. A document can express exactly what someone wanted and still cause difficulties after their death if the signing requirements have not been followed.
The Law Society of Scotland explains that a will should be signed on every page in the presence of an independent adult witness who also signs the last page.
That is one reason using a solicitor can make sense. A solicitor can check that the document has been signed correctly rather than leaving the family to deal with a technical problem later.
Does a will have to be witnessed in Scotland?
Yes, there is an important distinction between the signature needed to make a will and the witnessing that helps establish its authenticity.
The testator must sign the will at the end of the final page. A witness should be present when the signature is made and should sign the document as well. For a will to have the evidential advantages associated with a probative document, the signing process should be completed correctly, including signing every page.
This is sometimes where DIY wills become problematic. Someone might download a template, fill it in, sign it at home and put the document somewhere safe. Years later, the deceased person’s family may find that the formalities were not followed properly.
A will does not need to be signed by a solicitor to be valid. Nor does it need to be validated by a solicitor practising in Scotland. A witness is not simply there as a formality, though. Their role can become important if someone later questions whether the deceased person actually signed the document.
The safest approach is straightforward. Follow the legal requirements carefully and keep the original document somewhere secure.
Why does signing every page matter?
People often assume that signing the final page is all that matters. Scottish law is slightly more particular.
The document must be signed at the end of the last page. For a will to be probative, the testator should also sign each preceding page, with the witness present during the signing process. This helps establish that the pages form part of the same document and were accepted by the person making the will.
The foot of each page is therefore significant in practice. A properly executed document gives the family and the executor a much clearer position if the will is later used to administer the estate.
This often comes as a surprise to people who have prepared a will without professional help. A document can look perfectly convincing while still having a formal defect.
Family Lawyers Glasgow can explain these requirements before you sign anything. That can be particularly useful if you are updating an old will, adding several pages or making changes to a document that already exists.
Can a spouse or children still make a claim if there is a will?
Yes. This is one of the most important differences between Scottish succession law and the rules that apply in some other parts of the UK.
Legal rights in Scotland allow certain close family members to claim from the deceased’s moveable estate. The rules apply to a surviving spouse or civil partner and children. Moveable property can include money, shares, cars, jewellery and furniture, while land and buildings fall into the separate category of heritable property.
Where there are children, a surviving spouse or civil partner can generally claim a share of one-third of the deceased’s moveable estate. Where there are no children, the spouse or civil partner can generally claim one-half. Children collectively can claim one-third where there is a surviving spouse or civil partner, or one-half where there is no surviving spouse or civil partner.
For example, imagine someone leaves a will giving their savings to a friend but leaves their house to a relative. Their children may still be entitled to claim their legal rights from the relevant moveable estate.
The value of the estate and the family circumstances need to be considered carefully. A legal rights calculation is not simply a matter of looking at the total value of everything owned.
What are legal rights in Scotland based on?
The distinction between moveable and heritable property is central to Scottish succession law. The deceased’s moveable estate can include cash, investments and personal possessions. Land and buildings are treated separately.
The surviving spouse or civil partner may have a share of the moveable estate, depending on whether there are children. Children also have rights.
That means a will cannot simply remove these rights by saying that a spouse or children should receive nothing. A person who is entitled to claim their legal rights may choose to do so. Someone cannot receive both the gift left to them under the will and their legal rights in respect of the same estate without considering the applicable rules.
A family member who wants to make a legal rights claim should take advice before accepting or rejecting an inheritance. Once a choice has been made, the consequences can be significant.
What happens if a will is not valid?
If a will fails to meet the formal requirements, the deceased person may effectively be treated as having died without a valid will, depending on the circumstances. This is known as intestacy.
That can have a major impact on an estate. Instead of following the deceased person’s wishes, succession legislation determines who inherits. The surviving spouse or civil partner and children may have prior and legal rights, followed by other relatives depending on the family circumstances.
A will that is not properly witnessed may not necessarily be worthless. There can be circumstances in which evidence is used to establish that the document represents the deceased person’s testamentary wishes. That may involve court proceedings, though, which can add delay, expense and stress for a grieving family.
Where there is a dispute about validity, a sheriff court may become involved. In practical terms, avoiding the problem in the first place is much easier than trying to repair it after someone has died.
Is an English will valid in Scotland?
An English will in Scotland can raise questions about which legal system applies. The answer depends on factors such as where the person was domiciled, where assets are located and the circumstances in which the will was made.
The rules in Scotland differ from those in England and Wales. Someone who has moved between jurisdictions, owns property in different parts of the UK or has family overseas should not assume that a will prepared under the law of England and Wales will automatically produce the result expected under Scottish law.
If you are domiciled in Scotland but have an existing will prepared elsewhere, it is sensible to seek legal advice rather than simply assuming that the document will work as intended.
The same applies if you have assets outside Scotland. Cross-border succession can become complicated quickly, particularly where property and different legal systems are involved.
Should you make a will using a solicitor?
There is no general requirement to make a will with a solicitor. You can make a will without a solicitor, provided the necessary legal formalities are followed.
The practical question is whether you are confident that your arrangements will achieve what you want. A straightforward estate may be relatively simple. Other estates are less so.
A solicitor can look beyond the wording of the will itself. That might include considering legal rights, previous marriages, a civil partnership, children from different relationships, jointly owned property, business interests or plans for setting up a trust.
A power of attorney is also worth considering as part of wider planning. A power of attorney deals with decisions during your lifetime if you become unable to manage your affairs. A will deals with what happens after death. They serve different purposes, but both can form part of sensible private client planning.
Legal aid can sometimes be available for advice and assistance on Scottish law matters, including wills, subject to the relevant eligibility rules.
What should you check after making a will?
Making a will is only part of the job. Your circumstances can change.
Marriage or civil partnership, divorce, separation, the birth of a child, a significant change in your finances or buying a property can all be reasons to review your arrangements. If your will names someone who has died, or leaves a gift involving an asset you no longer own, the document may no longer reflect your wishes.
Keep the original will somewhere safe and make sure the people who may need to deal with your estate know where it is. Wills can be registered voluntarily with the Registers of Scotland in the Register of Deeds, although registration is not generally a legal requirement.
You should also tell your executor where the original is held. Finding a will years later can be surprisingly difficult if nobody knows that one exists.
Family Lawyers Glasgow can help you review an existing will as well as prepare a new one. If your circumstances have changed, a short conversation with a solicitor now may prevent a much more difficult situation for your family later.
How can Family Lawyers Glasgow help with Scottish wills?
For most people, making a will should not be an intimidating process. The aim is to understand your circumstances, explain the relevant Scottish law in plain English and put arrangements in place that reflect your wishes as far as the law allows.
The Complete Clarity Solicitors Family Law Team also works alongside private client services, giving clients access to advice on connected family and succession issues. This can be particularly helpful where inheritance arrangements involve a spouse or children, relationship changes or wider family finances.
If you are unsure whether your existing will is valid, do not wait until someone dies to find out. Contact Family Lawyers Glasgow to speak to a solicitor about your circumstances. A properly prepared will can give you and your family much greater certainty about what happens next.
