A recent court case where a homemade Will was struck down as invalid demonstrates the perils of making your own Will.
It was recently reported that a Court application to have a “DIY” Will recognised as legally valid was rejected due to it not being signed properly. The result was that the deceased’s estate had to be dealt with under the “intestacy” rules, meaning that the wishes expressed by the deceased may not be carried out, but rather, the law will decide who will inherit the assets.
The case demonstrates why it is almost always best to have a Will prepared by a properly qualified professional. There is usually only one chance to get it right, as after the person has died, there is no guarantee that their Will can be corrected by a Court if mistakes were made in it.
The Problem
The case involved an apparent Will consisting of three pages, one with a heading, one listing assets owned by the deceased and the third giving instructions without actually making clear who was to inherit the estate. Only the heading page was fully signed and witnessed.
Under Scots law, a DIY will can be valid if it has been “subscribed” that is, signed on the last page, even if the other pages are not signed. In this case, it was not clear which page was intended to be the last page. Setting aside the fact that the Will did not clearly say who was to inherit the estate, the uncertainty meant that the Sheriff could not assume that the signed page was intended as the last page and was therefore unable to confirm the Will’s validity.
The Outcome
The consequence was that the estate of the deceased would have to be dealt with under the intestacy rules. These set out a default list of beneficiaries to inherit the estate where a person dies without a valid Will. While spouses, civil partners and children are all included on this list, they do not all inherit equally and the order of inheritance is fixed and may not match the intentions of the person who made the Will. While the Trust and Succession (Scotland) Bill, recently passed by the Scottish Parliament, will make some changes to the order of inheritance, the fact remains that the legal order may not be what the deceased wanted. For this reason, as much as anything else, it is always best to take proper advice on making a Will.
Even if an action to have a DIY Will recognised as valid is successful, the costs of going to Court will almost always be more than the cost of instructing a Solicitor to prepare a Will.
The Solution
A Will is one of the most important documents a person can make and in most cases, there is only one chance to get it right. Instructing a Solicitor to prepare one for you is a small price to pay for peace of mind.
If you have any questions about preparing a Will or would like to discuss making a Will, get in touch with our specialist Private Client team on 03330 430150.
