What makes a Will legally valid in Scotland
Under Scots Law, a Will can be drafted by a solicitor, a professional Will-writing company, or made at home. However it is made, a Will must meet certain requirements before the Sheriff Court will accept it for Confirmation.
Minimum requirements for a legal Will
Requirement | Definition |
Original, most recent, intact document | ‘Original’ means the physical document they signed, not a photocopy or scan. It should be the most recent version if they updated their Will |
Signed | Signed in wet ink by the person making the Will. If someone is disabled so cannot physically sign, a solicitor can sign on their behalf. |
Dated | The date of signing is written on the last page. |
Witnessed | Signed in the presence of at least one independent witness over 16 years old who does not personally benefit under the Will. |
Made freely | Made without coercion or pressure, and by someone of sound mind. |
A Will that does not meet these requirements cannot be used for Confirmation, and the Courts will normally treat this estate as if there were no Will.
Extra requirements for Confirmation
The Sheriff Court also has extra requirements for the Will to be valid for Confirmation.
If these requirements are not met, the Court will reject your application. However, you can often fix these problems before applying.
Requirement | Definition |
Every page must be signed by the deceased person. | Usually, people sign at the bottom of each page. |
The final page with the signature must also include at least one clause of the Will | This page can’t just be the signature.. |
The Will should have been made in Scotland. | Wills made elsewhere can normally be validated by a solicitor who practices in that jurisdiction. |
If the Will is not signed on every page, or the final page does not include a clause, you can use a ‘Requirements of Writing’ application to validate the Will. You can only do this if:
the person making the Will has signed the final page
at least one witness has signed the final page
If all witnesses have also died, submitting a Requirements of Writing is more complicated, but it can still be possible to validate the Will this way.
We can guide you through this process of validating a Scottish or foreign Will for Confirmation.
If there is no original Will
For Confirmation, the Court will only accept the original Will or an official extract of a registered Will. A registered Will is one that has been recorded with the Registers of Scotland or the Sheriff Court. Other types of copies, including solicitor-certified copies, are not accepted.
If neither the original nor a registered extract exists, the estate normally has to be treated as if there was no Will (‘intestate’), meaning the law decides who inherits.
The only exception is if you use the process of ‘proving the tenor’.
Proving the tenor
In rare situations, a process called ‘proving the tenor’ can be used to establish a copy as the effective Will. This is expensive and time consuming, and can only be done using a solicitor.
It’s usually only worth doing if using the no Will process would change who inherits. If the original Will was lost by a solicitor, they would normally be expected to take responsibility for this process.
If you don’t have the original Will, you can apply for Confirmation using the intestacy route.
However, if you apply for Confirmation using a copy of an otherwise valid Will, the Court will reject your application and ask you to prove the tenor. It is too late to apply using the intestacy route at that stage.
When a Will has unclear or impractical terms
Sometimes the Will itself is valid but the wording of what has been left is unclear or impractical. In those cases, you can have a Deed of Variation prepared within two years of death to tidy things up, if all beneficiaries agree.
This is something we can help with as part of the Confirmation process.
No named Executors
A Will that does not name Executors is still valid. In that case, the Court will appoint the residual beneficiaries as Executors. We can prepare the wording you need for the application.
How we can help
We can:
review a Will to check if it is suitable for Confirmation
prepare the correct wording for applications where no executor has been named
guide you through fixing any signing or page-layout issues
help with Deeds of Variation after Confirmation
We cannot help with proving the tenor. If you are in this situation, you will need a solicitor, but once the process is complete you can come back to us for Confirmation support.