Solicitors often discuss the legal precautions that should be taken to protect individuals in the eventuality that they lose mental capacity. However, people rarely acknowledge the instances where individual's minds are fully active but their physical capacity is affected due to debilitating illnesses, short term injuries or problems with sight.
For example, May is National Stroke Awareness Month (#MakeMayPurple) in the UK and this is one medical condition which could affect a person's ability to sign documents.
Here we look at how the inability to physically sign a legal document should not prevent an individual from making a Will or Power of Attorney.
What makes a valid Will?
As a starting point it is important to make a Will to protect your loved ones and your assets. A Will ensures that your estate goes to the person, or people, you want to receive it and can be invaluable in avoiding potential family fall outs. The Requirements of Writing (Scotland) Act sets out the following requirements to make a valid Will:
- the individual making the Will, known as the "testator", must have testamentary capacity;
- the Will must accurately reflect the testators testamentary intention; and
- the Will must be correctly executed and signed by the testator.
However, if the testator is blind or unable to write there is a special procedure called "notarial execution" that allows the testator to authorise and instruct a solicitor, or another individual from a restricted class of persons, to sign on their behalf.
During a notarial execution the following steps will be taken:
- the solicitor must establish proof of identity of the testator;
- the solicitor must satisfy themselves that the testator has capacity;
- the testator must declare to the solicitor that they are blind or unable to write;
- the solicitor must then read out the document in full to the testator;
- the testator must confirm that they understand the contents and effect of the document and indicate they authorise the solicitor to sign the document on their behalf;
- the solicitor will then sign the Will, on each page, in the presence of the testator and a witness.
We're here to help
If you would like to discuss making a Will or to ask what could happen in your own situation if you were to pass away intestate, please contact our private client team using the form below or call one of our offices on:
Elgin: 01343 542623
We have solicitors and offices across the country ready to help.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.