HM Insights

Would an unsent text message be accepted as a Will in Scotland?

Currently, it's very unlikely that any Court in Scotland would take the same view. Testamentary writings need to comply with The  Requirements of Writing (Scotland) Act 1995 which among other things refers to the document being on paper or even parchment which shows how far away we are from accepting electronic testamentary writings.

How Techie Can Testamentary Writings Be In Scotland

In 2014 The Electronic Documents (Scotland) Regulations were introduced however these provisions relate more to conveyancing and specifically exclude testamentary writings which emphasises the requirement for a Will to be validly executed. In 2006, the law in Queensland, Australia changed to allow less formal types of documents to be accepted as a Will. There was even a precedent in 2013 which accepted a DVD titled "My Will" as an official Will.

There are occasions in Scotland where the Court may accept a Will which has not been validly executed but this requires further Court proceedings, affidavit evidence and of course will incur higher expenses and will take more time. This is seen quite regularly with homemade Wills, i.e. the testator may not be aware that a Will in Scotland requires a signature on every page. If a Will is signed in the presence of a Solicitor, these errors can be avoided and the capacity of the testator is unlikely to be challenged. The Solicitor will have made a professional judgement or will have sought a medical opinion regarding the testator's capacity.

It's worth bearing in mind that in this case the man's spouse and son were disinherited because the Court accepted the text as an official Will. In Scotland, it is not possible to disinherit a spouse or children as they have what are known as "Legal Rights". They're recognised as being entitled to a proportion of the moveable estate, e.g. cash, shares etc.

In the future, the law in Scotland may move with the times and take a view on informal testamentary writings made by electronic means but for now we are a long way from this. It's important therefore to have a validly executed Will in place to ensure that your affairs are in order and your estate is distributed in accordance with your wishes.

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