June 2015 – “Don’t Take This To A ‘Greedy Lawyer!” – Home Made Wills

Author: Mitchells Roberton
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The words in the title appeared in the notebook of Mrs Melanie Gibson who died on 7th October 2012. Her notebook also included other wording as follows:

 Dont-Take-This-To-A-Greedy-Lawyer-Home-Made-Wills

“20/01/12

–  Nearly 51?

–  Life is shit at this time!!!

Please remember.  If Anne is still alive, I want her to have my wealthy remains – the house, pension, savings and everything else…

I hope my family accept this…

IT IS MY WISH.

Melanie Gibson

20/01/12″

  • It is clear Mrs Gibson was not a fan of lawyers: she wrote and signed the above passage herself without the help of a lawyer – greedy or otherwise. In the end, after two court cases, the writing above was held to qualify as a valid Will. But that exercise will have proved much more expensive for all concerned than making a properly valid Will in the first place.
  • The aim of this Note however is not to bang a drum about the wisdom of consulting a lawyer about making a Will. It is to look at the case of Mrs Gibson to note that, in principle, the requirements for making a valid Will are modest – more modest than is sometimes thought.

The Requirements of Writing (Scotland) Act 1995 and “formal validity”

 

  • The “long title” of the 1995 Act is “to reform the law of Scotland with regard to the requirement of writing for certain matters and the formal validity of contractual and other documents …”
  • In particular, the Act says that a person’s Will has to be in writing. That is just as one would expect: a Will has to be written down. Unlike many contracts, a will cannot be made orally.
  • As far as its formal validity is concerned the Act says that it must be signed by the person making the Will at the end of the last page. Strictly speaking nothing more is required as far as formal validity goes. In particular a witness to the signature of the granter of the Will is not necessary. It is certainly desirable because without the Will being witnessed there are some hoops to jump through before the estate of the granter of the Will can be administered following his or her death. But a witness is not required for the Will to be formally valid. Subscription of the Will by the granter is enough.

“Essential validity”

 

  • The 1995 Act however is concerned with formal validity: that is the Will must be in writing and must  be signed at the end by the granter of the Will.
  • But there is another important aspect of the matter. A Will must be both “formally valid” and “essentially valid”.  For it to be “essentially valid” the granter of the Will must, in particular, be at least twelve years old; must have the necessary mental capacity to grant a Will; must not have been subject to any “undue influence” from others as to the terms of the Will says; and the Will must be the granter’s concluded wishes about what is to happen to their property on death.
  • It is the last of these requirements that was the most crucial in Mrs Gibson’s court case.
  • Of course, in relation to a formal document clearly named “Will by James Bloggs” and  drawn up by solicitors it will usually be clear that it represents the granter’s concluded wishes as to what is to happen to his or her property on death. For good measure, and to put matters beyond any doubt, formal Wills drawn up by lawyers usually start with words to the following effect:

“ … in order to settle the succession to my estate after my death provide as follows …”

  • But home-made Wills are sometimes equivocal as to whether the writings in question actually represent the granter’s concluded wishes. Sometimes the terms of the writings may be expressed tentatively and indicate that they are not the concluded wishes but are mere jottings or draft provisions as to what the granter might wish to do but has not yet quite decided upon. It all depends upon the precise wording and the general context in which the writings appear.
  • If the wording does not amount to the concluded wishes of the granter then the Will does not qualify as being “essentially valid”. It was primarily that question which arose in the case of Mrs Gibson to which we now turn.

Mrs Gibson’s Will

 

  • What was said to be Mrs Gibson’s Will was the entry, quoted at the start of this Note, made by her in her own handwriting in a notebook of hers and signed by her at the end.
  • That entry is expressed in ordinary everyday language: it is not expressed in formal language. But its “formal validity” was not really in issue in the court cases. It was accepted that the writing was made by Mrs Gibson and signed by her at the end and that that was enough for “formal validity”.
  • The crucial question in court was whether the writing represented Mrs Gibson’s concluded wishes as to what was to happen to her property on death. In other words it turned on whether the writing was “essentially valid” as a Will.

 

  • Initially the court decided that in its context this did not qualify as a valid Will. On appeal however that decision was reversed. The Sheriff Principal found that “the document is in [Mrs Gibson’s] hand and properly subscribed [i.e. signed by her at the end]. In my view it is difficult to contemplate a will in clearer terms.”
  • So, Mrs Gibson (or rather her beneficiary) got there in the end. But it’s fair to assume that if she had made her Will with the help of a lawyer she would have got there sooner – and more cheaply.

 

 

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Kathryn Bready: kathryn@mitchells-roberton.co.uk

 

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