Navigating the Minefield: The Top Challenges of Creating a Valid Will in Scotland

Preparing a valid Will that deals with your estate after your death is one of the most sensible things you can ever do. However, unless you take care when drawing up your Will, problems and delays can occur when dealing with your estate. To avoid those delays and problems, it is most important you draw up your Will properly.

There are certain steps you must take to create a valid Will in Scotland. However, it is, perhaps, best to give some examples of common problems we encounter to explain why creating a valid Will can be a problem. These types of problems will delay the distribution of the estate to your beneficiaries. In addition, they may mean we have to apply to the court to correct an error. In some instances, the problems in Wills cannot be resolved. If that happens, it might mean all or part of the estate will need to be dealt with as if the Will never existed in the first place.

Let us now look at common problems with Wills we experience when dealing with an estate.

Common Problems with Wills

The following are common problems with Wills we experience when dealing with an estate.

Incorrect execution

Unfortunately, it is common to find the Will has been incorrectly executed. This might mean that it has not been witnessed, or that the testator (the person making the Will) has not signed on every page. Signing a Will on every page is a requirement in Scotland. Alternatively, it might be that a beneficiary has witnessed the Will. Beneficiaries in a Will must not be a witness to the signing of the Will for obvious reasons.

For a Will in Scotland to be properly executed, it must be signed in the presence of a witness who is not a beneficiary in the Will and the testator must also sign on every page (preferably at the foot of the page). The Witness need only witness the signature on the final page of the Will.

Ambiguous or unclear language

If the Will uses language that is unclear or confusing, this may cause problems when dealing with the estate. When you draw up a Will, it is important to use clear language and to make statements that are unambiguous. For instance, it is not sensible to leave certain types of property to more than one person. If you have an item of jewellery, do not direct its ownership to be made over to one niece in one clause and in a later clause make over the same item of jewellery to another niece.

Unclear or ambiguous language make it difficult, if not impossible, for your executor to properly determine your wishes.

Always read over your Will when it is draft form to make sure there is no confusion or conflict in your wishes and that you have used language that is clear and unambiguous.

Omission of a Residue Clause

Sometimes, when creating a Will with many bequests or legacies, there is a belief that this deals with your entire estate. However, as you continue to live on after you have drawn up your Will, your property and assets are likely to change. Whilst you may have catered for specific items in your Will, if you do not make provision for anything else, that part of your estate will need to be dealt with on an intestate basis. This will involve a court process and additional cost when dealing with your estate.

We always recommend including a residue clause even if you believe you have dealt with your entire property and assets in specific legacies and bequests in your Will.

Failure to revoke previous Wills

If someone has created a series of Wills over the years, it is important when drawing up a new Will that you revoke (cancel) your previous Will. If you fail to do this, it will cause confusion because the earlier Wills will be just as valid as the latest Will. This causes untold confusion, especially if each Will conflicts with the other.

To avoid this issue, ensure that you revoke any prior Wills you do not wish to have any effect. If you do not revoke a prior Will, please ensure its terms do not conflict with your current Will.

Revoking a Will designed to deal with foreign assets

In contrast to the previous point, if you have a Will made in a country outside Scotland to deal with assets and property in that country, when you update your Scottish Will, you must ensure that any revocation clause does not also revoke your “foreign” Will. Make sure any revocation clause contains an exception clearly defining the “foreign” Will you wish to remain in force.

When you draw up your Will, it is important to take account of any Will you have made in another jurisdiction. If you wish the assets in the different jurisdiction to be dealt with in a “foreign” Will, make sure you do not revoke that Will when you create your new Scottish Will.

Invalid or insufficient gifts

You can only gift property or assets you own and where you have sufficient money to meet any financial gifts. Clearly, if you do not own an item you have included in a bequest in your estate, you cannot legally gift that item to someone else. There might also be circumstances where you owned a piece of property or an asset when drawing up your Will and directed it to be transferred to someone. However, before you die you sell or otherwise dispose of that asset. This then means the bequest cannot be fulfilled because you no longer owned the asset or property at the time of your death.

Similarly, if you have made financial provisions in your Will but the cash available in your estate is not sufficient to meet these, your estate will have a problem.

If your circumstances change, it makes sense to review your Will to ensure your estate can still meet your legacies and bequests.

Donating to a charity that does not exist

Gifting to charity in a Will now has a higher profile than ever before. That means it is very important to make sure if you are making a bequest or legacy in favour of a charity in your Will you properly identify that charity. It is good practice to include the Charity Registration number allocated by the Charity Regulator in the country in which you live (In Scotland, this is the Office of the Charity Regulator Scotland).

It is also good practice to allow your executors discretion allowing them to reassign the bequest or legacy to an alternative charity with similar aims in the event the charity you nominated no longer exists.

You may also be interested in reading our article on donating to charity through a Will.

Including non-testamentary assets

If you hold money in a joint account where there is a named beneficiary or have an insurance policy which is held in trust or a pension nominating an individual recipient in the event of your death, it is not appropriate to mention items like this in your Will.

The reason for that is that they will never form part of your estate. If they do not form part of your estate you cannot make directions in your Will as to what should be done with them.

When you create your Will, check the position of your assets and property to make sure it will be included in your estate.

Lack of Capacity

If you do not have the mental capacity to make your Will, your will can be challenged. If it is shown that you did not have the mental capacity to make your Will at the time you drew it up, your Will will be set aside. For more information you should read our article on capacity to make a Will.

Undue influence

Another issue we sometimes face is where it is claimed there has been undue influence on the person creating the Will. When there is a challenge like this, those challenging the Will need to resort to the courts to prove there has been undue influence over the individual who drew up their Will.

If you would like to know more about challenging a Will you can read our article on how you contest a Will in Scotland.

The best advice we can give you when you are drawing up a Will is to consult a solicitor. Your solicitor will advise you on the structure of your Will and the impact of the content you wish to include. Using a solicitor will reduce the risk of all or part of your Will being declared invalid or leave it open to challenge.

We have many years of experience in advising clients in North Berwick, Dunbar and East Lothian as well as across Scotland and beyond. If you would like to discuss how to make a Will or deal with problems in an estate, please contact us.