If there is a will, its terms should be interpreted to reflect the testator’s intentions. Generally, the will
should be read as a whole and the contents interpreted to have their ordinary meaning.
Is there a will? All kinds of problems can arise here. There may be a recent will lodged with a solicitor
which the relatives know about
Or a will may be found among personal papers in the home but relatives claim this is old and another
more up to date will has been made.
Even if there is a will there still can be problems;
Perhaps an item was left to a particular person and it is no longer available, or
The beneficiary has predeceased the testator who hasn’t left instructions as to who else is to inherit it
(whom failing clause)
A similar issue relates to the naming of an executor or executors. If there is only one and he or she
predeceases the testator, then matters may become complicated.
Testator Succession – deceased left a will
Formalities for Validity of Wills
The Requirements of Writing (Scotland) Act 1995
Under the law of Scotland, no specific words are required for a will as long as it clearly expresses the
testator’s’ intention. it can be in ink, obviously, ink is the best as pencil can be altered easily
Wills can be typed, hand written or, can be a combination of print and handwriting.
Action challenging the validity of a will is called action of reduction
Provided the will complied with the following it will be held to be self-proving
The testator must sign at the foot of every page and at the end of the will.
There must be one witness who sees the testator sign or acknowledge his signature (before the
requirements of Writings (Scotland) act 1995, two witnesses were required.
The witness must sign at the end of the last page of the will;
The witness must fully designed ie full name, address, occupation.
The Requirements of Writing (Scotland) act 1995 applies to only documents executed on or after 1st
August 1995.
Ambiguity in the will?
If anything in a will could be interpreted in 2 ways
Then:
Other evidence outside the will, e.g. letters written by the testator, could be used to clarify the
testator’s intention.
Capacity to make a will
Age
there are differences in Scotland in the law of contract and the law of Succession.
The Age of Legal Capacity (Scotland) act 1991 gave unrestricted testamentary capacity to both males
and females at the age of 12 years. (England – the age of 18 unless on active military service or
seaman when the age is then 16)
Of Unsound Mind
A person who lacks the mental capacity to make a will.
However, anytime can make a will and it is up to someone challenging it to prove that the person is of
unsound mind.
The question is – did the person understand the nature and effect of his will when making it?
In that case a guardian may be appointed.
(a person appointed by the court to look after the affairs of someone who lacks the mental capacity to
do it themselves)
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