AA Legal Documents

Formalities for making a Will

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Formalities

There are formalities involved in making a Will, which a testator (a person who makes a Will) will need to consider.

There are five requirements:

  • The Will must be in writing
  • The Will must be signed
  • The testator must intend by his or her signature to create the Will
  • To be formally valid. the testator must sign the Will on each page and at the end of the last page in the presence of one witness or acknowledge his signature in the presence of one witness
  • The witness must sign on the last page
In writing

There are no restrictions as to the materials on which, or by which, a Will may be written, or as to what language may be used. It may be handwritten or typed, or a combination (e.g. printed forms with spaces that are completed in the testator's handwriting).

As a matter of good practice, it is strongly recommended that a Will is written in ink or typed/printed on durable (acid free) paper.

Signed

A Will must be signed by the testator. Normally this will be in the conventional way. If, however, the testator was in the habit of signing documents in a different way, such an execution may well be valid. As such a method of execution may be challenged, however, it may be wise in such cases to consider having the will notarially executed. To be formally valid (i.e. presumed to have been signed by then testator), a Will should be signed using either the testator's full name or the testator's surname preceded by at least one forename or an initial or an abbreviation or familiar form of a forename. If the Will is executed in any other way, for example through the use of a different name or an initial or a mark, the Will may be valid if that was the testator's normal method of executing documents but it will not be formally valid (i.e., it will not be presumed to have been signed by the testator).

If a Will is not formally valid (i.e. legally presumed to have been signed by the testator), a petition to the Court will be necessary to establish that the signature is that of the testator.

If a testator is blind or unable to write, a Will can be executed on his behalf within Scotland by a solicitor, an advocate, a Justice of the Peace or a Sheriff Clerk. Slightly different arrangements operate if execution is outside Scotland. In all such cases, legal advice should be sought.

Intention to give effect to Will

It is essential that the testator knows that they are signing a Will.

In the presence of a witness

The signature of the testator must be made or acknowledged by the testator in the presence of one witness who should sign immediately after the testator signs or acknowledges his signature. The process must be continuous.

The witness needs not know that the document is a Will or if he does, what it contains

A person witnesses a testator's subscription if the witness sees the testator signing the document or if the testator acknowledges his signature to that witness.

For a signature to be acknowledged in the presence of the witness, there are therefore three practical requirements:

  • The Will must already have been signed before acknowledgement
  • At the time of acknowledgement the witness must see the signature
  • The testator must acknowledge the signature usually by his or her words or exceptionally by his or her conduct
There are restrictions on who may act as a witness. Blind people and people without mental capacity may not witness a Will.

Beneficiaries under a Will, or their spouses/civil partners, may witness a Will, but in practice should be advised not to do so, since their interest might be relevant if the Will is afterwards challenged, for example on the basis of the testator's mental infirmity or on the basis that advantage has been taken of the testator..

Witness signs

The witness must sign on the last page.

Presumption of due execution

A Will is presumed to have been properly signed where it is signed on each page and the last page by the testator and it is properly witnessed.

This can be particularly important where the witness is dead or cannot be traced.

Testing clause

A testing clause is a clause in a Will that explains the circumstances in which the Will was signed and witnessed.

Such a clause is not essential, but is highly desirable. If it is omitted, however, it can be completed at any stage prior to the Will being founded upon in any court proceedings or registered in the court books for preservation.