Signing a Will - common mistakes and misconceptions

You would think it would be straightforward to sign a Scottish Will. If only it were as simple as that! Drawing up a Will in Scotland is a logical, straightforward process. However, you must follow specific rules when signing a Will in Scotland.

How should you sign a Scottish Will?

For almost thirty years, the Requirements of Writing (Scotland) Act 1995 (the 1995 Act) has dictated the way in which a Scottish Will must be signed. This Act dictates that the Will must be signed by the testator on every page. The testator is the person whose Will it is. In addition, the testator must sign the Will at the end. One witness must be present when the Will is signed. The witness must also sign at the end of the Will and should print their name and address. The date and place of signing should also be added. Signing at the end of a Will is known as subscription.

A Will signed in this way becomes “probative” or “self-proving”. That means no further evidence is needed to prove the Will is valid.

Why does a Will need to be signed on every page?

The 1995 Act makes the signing of each page of a Scottish Will compulsory. The key reason a Will in Scotland needs to be signed on every page is very simple. It prevents the substitution of pages after a Will has been signed. Prior to the 1995 Act, there was no legal requirement to sign a Scottish Will on every page. That means that it would have been possible to substitute pages after a Will had been signed. This clearly gave rise to potential fraud and efforts to defeat the testator’s wishes. Such issues should no longer arise if the Will is properly executed in line with the requirements of the 1995 Act.

What happens if a Will has only been signed on the last page?

It is possible to have the Will declared valid if it has only been signed on the last page and witnessed. The 1995 Act sets down a procedure to allow such a Will to be considered valid. However, this will involve a court procedure with evidence being presented to the court.

However, if a will is not subscribed (i.e. signed at the end) and witnessed there is no guarantee the court will declare the Will valid.

When might a signed Will be invalid?

In the recent case of Christopher Knapman and Patrick Wadeson heard at Jedburgh Sheriff Court, Mr Knapman and Mr Wadeson, the purported executors, asked the sheriff to declare a Will which was signed on the first page to be valid. After hearing the evidence and reviewing the law, the sheriff decided that the Will was not valid. He judged that the signing failed to comply with the law.

This meant that the estate of the late Jean Dorothy Weatheritt was declared intestate. That meant the estate would be distributed under the terms of the Succession (Scotland) Act 2016.

The dangers of homemade Wills

There is always a risk of mistakes when you make a homemade Will. Generally, homemade Will kits refer to the law as it stands in England and Wales. That means the instructions on signing will be incorrect. In addition, such kits do not usually properly explain how an estate and the wishes of the testator are dealt with under Scots Law. That is why it is important to take professional legal advice when drawing up a Will.

Specialist Wills Solicitors in North Berwick and Dunbar

Our solicitors at Paris Steele Law prepare Wills for clients in North Berwick and Dunbar in East Lothian, throughout Edinburgh and across Scotland. They are well versed in the legal requirements and experienced in helping you draw up your Will. Importantly, they understand the law on signing a Will.
If you would like to discuss making a Will or carrying out a Will review, please contact us.