IHTM12047 - Wills: Scottish Wills
In Scotland, to be valid a will must in writing, but the rules
which operate for wills executed on or after 1st August 1995 are
different from those which (continue to) operate for wills executed
before that date.
Wills executed before 1st August 1995
Legally effective wills executed prior to 1st August 1995
fall into two categories, namely holograph wills (which term
encompasses wills 'adopted as holograph') and attested wills.
Holograph wills - these are entirely in the handwriting of
and subscribed by the testator, but not witnessed. They are often
informal in nature.
- A variation of the holograph will is the will which has been 'adopted as holograph''.
These are wills executed in typescript or in the hand-writing of someone other than the testator. To be legally effective they must bear the words 'adopted as holograph' in the handwriting of the testator at the foot of the document before the testator's subscribed signature.
Holograph wills are not probative (self evidencing). If someone wishes to found on a holograph will that person must first prove, by the use of affidavit evidence as to the testators handwriting, that the will was validly executed.
- Attested wills - these can be either hand-written or in typescript, but they must be subscribed by the testator and witnessed by two witnesses.
Attested wills are probative so do not have to be set up (proved) by affidavit evidence.
Wills executed on or after 1st August 1995
For all wills executed on or after 1st August 1995 the form
of legally effective writing is governed by the provisions of the
Requirements of Writing (Scotland) Act 1995. Wills, effective under
this Act, can take the form of either subscribed or (subscribed
and) attested writings and may be hand-written or in typescript.
The new subscribed will can be regarded as broadly equivalent
of the old holograph will while the new attested will performs the
same function as the old attested will.
- Wills which are merely subscribed
Under the 1995 Act, to be valid as a will, a writing, must be signed at the end of the last page (subscribed) by the testator. Where a will consists of more than one page, every page must be signed by the testator, although only the final page need be subscribed. The testator may sign anywhere on the other pages.
Once subscribed a will is immediately formally valid. However, a will which is merely subscribed is not a probative (self evidencing) document. This means that a person wishing to found on it to obtain confirmation to the testator's estate must first prove that the will was validly executed. Someone seeking confirmation must therefore, as a first step, produce, to the Sheriff Clerk, affidavit evidence as to the testator's handwriting.
Para 39 Sch 4 of the 1995 Act adds a new S22A to the Succession (Scotland) Act 1964. The effect of this provision is that confirmation (IHTM05061) will not be granted on wills which are not attested (witnessed) unless the validity of the will's execution is set up (proved) by affidavit evidence (essentially the same rule as exists for pre 1st August 1995 holograph wills).
- Wills which are (subscribed and) attested
The 1995 Act provides for a second type of writing, effective as a will (and for other legal purposes), namely a writing attested (witnessed) by one witness. A will in this form corresponds to the pre 1st August 1995 formal will which had to be attested by two witnesses.
Where the testator, having completed and subscribed the will, has this formally witnessed by one witness, the resulting attested writing is probative (self evidencing). As there is a presumption that an attested will has been validly executed, such a will need not be proved by those seeking confirmation to the testator's estate. In the unusual situation where the validity of execution is disputed, it is for the person challenging the will to lead evidence to rebut this presumption.
The witness need only attest to the final subscribed signature, not to the testator's signatures on the other pages of a multi-page will.
The old law continues for wills executed prior to 1 August 1995
