Lisa Flaherty
- Senior Solicitor
Insights | Wills
R.E.S.P.E.C.T… my testamentary wishes
13 July 2023
News recently broke that a handwritten note, found stuffed under Aretha Franklin’s couch cushion, was deemed to be her last Will and Testament by a US Court. This begs the question – could the same piece of paper constitute a valid Will in Scotland?
Aretha’s story
When Aretha Franklin passed away, her loved ones couldn’t find a Will initially – so they presumed she didn’t have one. Eventually they found two handwritten items:
- The first, a document which was signed and notarised in 2010. They found it in a locked drawer containing other important documentation such as legal contracts.
- The second, four pages in a spiral notebook decorated with doodles and dated 2014. The note was headed “To whom it may concern and being of sound mind, I write my will and testimony” and, at the bottom, there was a smiley face next to the word “Franklin”.
The two documents contained different instructions as to how her multi-million dollar estate should be divided amongst her children. It was decided that the 2014 scribbled note was a sufficiently valid Will (meaning her existing 2010 Will was superseded and could be ignored).
Would Aretha’s 2014 Will be accepted in Scotland?
There are three basic requirements that must be met before any writing can be regarded as a valid Will in Scotland.
- Capacity- The person making the Will was both legally and mentally capable and were signing the document willingly.
- Testamentary Intention- the writing deals with all or part of their estate.
- Subscription- the document is signed at the bottom.
If the Will is handwritten then it will also be necessary to prove that it is the testator’s own handwriting. While this may seem simple enough, there are strict rules in place confirming how to correctly sign a Will – the Scottish Courts could determine that a smiley face drawn next to the testator’s surname does not constitute a valid signature.
Even if a handwritten Will does meet the basic requirement and has been validly signed, it could still be challenged. Suspicions that the Will was made under duress is much more likely when it has been handwritten with no independent witnesses or legal advisors present to confirm otherwise. Handwritten Wills can also be susceptible to misinterpretation or confusion if the testator’s intentions are not expressed clearly (or written legibly!).
If a challenge is upheld by the Court, then the Will (either in its entirety or just the specific part that has been challenged) would be void. If there is no valid Will in place when an individual passes away, then the default position in Scotland is that the deceased individual’s estate will be distributed according to rules set out in legislation created in 1964.
These rules confirm who will inherit your estate, in what order, and to what extent. They do not include non-married partners, stepchildren or close friends. It therefore goes without saying that these rules often do not reflect what would have been the deceased individual’s true intentions. There are also further court procedures to be adhered to when there is no valid Will in place – meaning delays in distribution of the estate and increased emotional and financial burden on loved ones at an already hugely difficult time.
The benefits of using a solicitor to draft your Will
When a solicitor assists you with the preparation of your Will, you will have peace of mind knowing that they will ensure all signing and other legal requirements are adhered to. Your solicitor will also ensure that your wishes are correctly articulated, reducing the likelihood of disputes after you pass away.
They will perhaps also identify things to include in your Will that you would not otherwise have thought about. A Will is a powerful document and it can be tailored in a way to look after vulnerable family members or take useful tax planning measures into account.
Finally, there is no risk of your solicitor storing your Will underneath the couch cushions in their reception area. Instead, it will be stored in a fireproof safe, ensuring no loss or damage, and you can rest assured knowing it will be kept safely there until it is eventually needed.
If you don’t yet have a Will – or if you’re having second thoughts about a handwritten one stashed away somewhere – I highly recommend consulting a solicitor. Further, if it has been a few years since your Will was drafted, it is worth checking whether it still reflects your wishes. It’s surprising how regularly our personal circumstances change, we recommend reviewing your Will every 5-6 years.
If you’d like to discuss your Will with us, please contact Lisa Flaherty or your regular Anderson Strathern contact.
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