HM Insights

Video Wills in Scotland – are they legal and should they be?

We recently published an article discussing the validity of paperless Wills. A fellow solicitor from another firm commented on the piece, saying "Got to keep up with the times … why not use video Wills?"

This is a good question and one we expect will be asked by more clients in the near future. As the digital world increasingly touches every aspect of life, why should this not also cover what happens when we die?

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It is questions like these that bring into stark focus just how outdated Scottish laws of succession are. Although reformed in 2016, the principal legislation remains largely enshrined within the Succession (Scotland) Act 1964. The Requirements of Writing (Scotland) Act 1995 provides for the requirements for a Will to be formally valid but this does not cover any other form of expression of wish than in the written format.

Both pieces of legislation were enacted well before smartphones and before social media took over – if people choose to express every aspect of their daily life through an App and the world becomes paperless, it is incongruous to then expect the next generation to write down their wishes on paper.

As Scots law stands, however, the answer to the question in the title of this article is 'No' – at present video Wills are not admissible in Scotland.

What must a Will have to be valid in Scotland?

There are many websites that profess to be able to provide people with a step-by-step guide to creating a Will. To comment on the pitfalls of this would produce an article on this topic alone so we will leave that to one side for the moment. Crucial to all of these sites is that, even if you are using a website template, the following elements are essential to all:

  • It must be typed;
  • It must be printed;
  • It must be signed; and
  • The signature must be witnessed.

What can you do without a 'proper' Will?

It is currently possible to prove the validity of a copy of a Will, through an application to the Sheriff Court. The applicant would rely on the circumstances which would point to the Will having been mislaid rather than destroyed. Affidavit evidence would augment this position and also demonstrate that the copy to be proved was and remains the testamentary wishes of the deceased.

This can be compared to a situation whereby a Will is not in a written format. There is no original document containing a signature and the signature of a witness and it doesn't meet the current requirements of a valid Will, even if there is a video or recording of a clear and concise verbal statement made by a person free from influence or pressure or the confines of the Requirements of Writing (Scotland) Act 1995.

Advice will always be vital – whether a Will is digital or written

Regardless of whether the law catches up with the advancement in technology and the digital world, there will be no substitute for the legal expertise and knowledge of the many facets of expressing testamentary intention that can only be found by consulting a solicitor.

Making a Will is often an emotional experience and an App will not provide you with an empathetic ear or advise you on family dynamics or tax planning. It is the peace of mind that comes from succession planning with a Solicitor and knowing that it is valid and fit for purpose is often the most quoted benefit of the Will making process - that feeling will never be outdated.

Get in touch

If you would like to speak to a specialist about your own Will, please get in touch with a member of our team.

Useful Links 

MAKING A WILL IN SCOTLAND

POWER OF ATTORNEY 

EXECUTRY ADMINISTRATION

CARING FOR THE ELDERLY

DYING WITHOUT A WILL IN SCOTLAND