HM Insights

Court case shows why it is important to check the validity of your Will

The High Court in England has recently ruled on an action raised by two sisters against their brother that centred on the validity of their mother's Will made shortly before she died.

Chris Burgess was due to inherit a fifth of his parents' combined estate prior to his Father passing away in October 2012. Following his father's death, his mother decided to change her Will and redistribute her entire estate equally amongst her three children.

Will-valid-signed-instestate-court-scotland-law-lawyer-solicitor-invalid-money-estate-share.jpg

Daughters, Jennifer Penny, 69, and Catherine Kennard, 55, claimed that their mother, who was 87 at the time of changing her Will, was incapable of validly executing any testamentary writing and therefore, her previous Will should take full effect.

Ultimately, Judge Newman held that Mrs Burgess' latest Will was invalid, due to a signing witness not being physically present when she signed the document. There was an added complication in that Chris had shredded the previous document, at the request of his mother, with the result that the estate fell into intestacy.

Accordingly, the court ruled that the entire estate should be split equally, leaving each sibling with an equal share of £1.5 million.

How do I validly execute my Will?

The Requirements of Writing (Scotland) Act 1995 dictates the position in Scotland in that a Will is validly executed in Scotland provided the following conditions are met:

  • The testator must be 12 years or older;
  • The testator must be of sound mind and understand the consequences of making the Will;
  • The testator must be making their Will voluntarily and without undue pressure or influence;
  • The document must be signed by the testator on every page before a witness, who must also sign on the final page of the document.

What happens if my Will is invalid?

If a Will is deemed to be invalid, a person's estate will be determined by their previous Will. If no such Will is available, or never existed, the estate is intestate and Section 2 of the Succession (Scotland) Act 1964 governs who inherits the estate.

If, like the facts of the Burgess case, a valid Will does not exist, an executor must be appointed by court petition and are likely to require a Bond of Caution prior to Confirmation being granted. This will result in further costs to the estate along with potential delay.

Despite an update to the rules of succession being enacted in 2016, the rules of who inherits an estate may not reflect the wishes of the deceased which is why it is vital to obtain expert legal advice when drafting your Will to ensure it is valid and your estate is distributed as you wish and not by legislation.

Get in touch

If you are considering drafting your Will and would like the peace of mind that comes from instructing an expert in this area, please do not hesitate to get in touch with our private client team who will be delighted to assist.

Useful Links 

MAKING A WILL IN SCOTLAND