Should you decide to write your will on the back of a couple of boxes of festive mince pies this Christmas, would it be considered valid? In this article we examine a recent English High Court case and highlight the key differences in relation to formal validity of a will in England and Wales on the one hand and Scotland on the other, as well as explaining the concept of probative or self-proving status in Scotland.
The High Court case
Shortly before his death, the testator wrote his will on the back of two separate pieces of cardboard packaging - one previously containing Young’s frozen fish and the other previously containing Mr Kipling’s mince pies. We shall refer to these as the two “pages” of his will.
The will left the majority of his estate to a charity. The second page had been signed and dated by the testator in front of two of his neighbours. The charity sought to admit the will to probate in England and the High Court had to consider whether it was valid or not.
Importantly, the law does not dictate what a will has to be written on, and it is well established both north and south of the border that a will need not be written on paper in order to be valid. That being so, the fact that the will in this case had been written on the back of cardboard food boxes (including frozen fish) was, excuse the pun, somewhat of a red herring.
The crucial issue for the High Court to consider was whether or not the two pieces of cardboard were intended to be read together and to form the testator’s will. This was arguably unclear since the two pages were seemingly capable of being read independently and because only one of the pages had been signed and witnessed. The witnesses also testified in court that they did not see the first page when they witnessed the second page being signed.
Ultimately, the court ruled that the testator had indeed intended for the two pages to be read as a whole and to form his will. He had numbered the pages 1 and 2. The evidence suggested he had used the same pen and written them at the same time. He had also referred to the pieces of cardboard as his will.
In reaching its decision, the court also took into account the testator’s intentions and the fact that if the court found the will to be invalid then this would have the effect of defeating his intentions and his estate falling to his family (who he clearly did not want to inherit), rather than the charity (who he had explicitly provided should inherit the majority of his estate).
The case highlights the importance of seeking legal advice before putting in place a will, so as to ensure insofar as possible, that it will likely be treated as valid down the line and to prevent your true testamentary intentions potentially being defeated. The case also brings to the fore some of the key differences in requirements for formal validity of a will in England and Wales, and Scotland.
England and Wales
Section 9 of the Wills Act 1837 applies to all wills in England and Wales. It provides that a will shall not be valid unless:
it is in writing; and
it is signed by the testator (or by some other person in his presence and by his direction); and
it appears that the testator intended by his signature to give effect to the will; and
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and each witness must attest and sign the will; or acknowledge his signature in the presence of the testator.
In the case discussed at the outset, the court ultimately found that all of these requirements were satisfied. If they had not, then it would not have been admitted to probate.
Scotland
The position in Scotland is different to that in England and Wales. The principal rules on executing Scots law documents, including wills, are found in the Requirements of Writing (Scotland) Act 1995 (the “1995 Act”).
For a will to be valid, it must be:
in writing; and
subscribed by the testator.
Additionally, it must demonstrate testamentary intention of the testator i.e. it must be clear who the testator intends to bequeath their estate to.
A will is “subscribed” by the testator if it is signed by them at the end of the last page.
However, in order for confirmation (probate) to be granted in respect of a will, it must not only be valid, but also self-evidencing (or probative). The 1995 Act provides that in order for a will to be self-proving it must:
be signed by the testator on every sheet; and
the testator’s signature must be witnessed by one witness.
This is different from England and Wales where the will need only be signed on the last page; and must be witnessed by two witnesses, rather than one.
If these requirements are satisfied then the will is presumed to have been validly executed and should that be challenged, then the burden of proving otherwise rests with the party alleging it has not been validly executed.
Court application to “set up” a will in Scotland
Even if a will in Scotland is not signed by the testator on every page, or their signature is not witnessed at all, then all is not lost. It is possible to make an application to the court to “set up” the will under section 4 of the 1995 Act.
Anyone with an interest in the will can make such an application. Typically this is an executor or beneficiary. Affidavit evidence is lodged with the court to satisfy the court that the will was signed by the deceased.
How would the English case have been decided in Scotland?
In light of all we have explained above, had the English case discussed at the outset been considered in Scotland following an application under section 4 of the 1995 Act, then it would likely have been held to have been valid since it was signed by the testator on one page and had been witnessed, so long as there was sufficient affidavit evidence to speak to the signature being the testator’s usual signature.
How can we help?
Our expert cross-departmental contentious executries, trusts and tax team draw on the expertise of contentious and non-contentious specialists from across our firm and has a wealth of experience in this field.
We regularly advise clients relating to the validity of wills and all manner of difficult private client questions and disputes. We advise clients on alternative remedies and resolutions which might assist in these situations, as well as alternative methods of dispute resolution such as mediation.
For enquiries relating to the validity of or challenging wills, or any other contentious executries, trusts, or tax issues, please contact Stephanie Hepburn, Partner in our dispute resolution and litigation team.
This case also highlights the importance of taking legal advice and putting in place a professionally drafted will if at all possible, rather than a homemade will so as to avoid potential difficulties down the line, or your true testamentary intentions being defeated. For non-contentious enquiries, including preparing a will or creating a trust, please contact a member of our private wealth and tax team.