Legal considerations when making a Will

England , Wales & Scotland (“ UK ”)
 

Capacity to make a Will.
In order for a Will to be valid it must be made by a person who has attained the age of eighteen (12 in Scotland) years or over and is of sound mind. The courts will refuse to grant probate where it is not satisfied that the Will is the free act of the testator, as where there is undue influence. Where a person making a Will is suffering from a mental illness, the Will may be deemed to be valid if made during a period of lucidity and not invalidated by a subsequent relapse.

Signatures requirements in England & Wales .
The Succession Act sets out the formal requirements for making a Will. For a Will to be upheld as valid it must be in writing, and in accordance with the following requirements in relation to the signature. The Will must be signed by the testator or by someone directed to do so on his behalf. Signatures may include marks, initials, a rubber stamp, a "nick-name", or a former name. The general test in relation to the admissibility of the Will is whether the testator intended the signature to execute the Will. The Testator must sign his or her name at the foot of the Will. The law will not give effect to any dispositions made after the signature.

The testator's signature must be made in the presence of two witnesses both present at the same time with the testator, and the witnesses will then be required to sign the Will in the presence of the testator. The witnesses do not have to be present when the testator signs the Will provided they are present when the testator acknowledges the signature.

Signatures requirements in Scotland .
The Succession ( Scotland ) Act 1964 sets out the formal requirements for making a Will. For a Will to be upheld as valid it must be in writing, and in accordance with the following requirements in relation to the signature. The Will must be signed by the testator on every page or by someone directed to do so on his behalf. Signatures may include marks, initials, a rubber stamp, a "nick-name", or a former name. The general test in relation to the admissibility of the Will is whether the testator intended the signature to execute the Will. The Will must be signed at the foot of every page of the Will. The law will not give effect to any dispositions made after the signature.

The testator's signature must be made in the presence of one witness present at the same time with the testator, and the witness will then be required to give their signature in the presence of the testator. The witness does not have to be present when the testator signs the Will provided he or she is present when the testator acknowledges the signature.

Revocation of a Will.
A testator may revoke a Will in several ways.

(1) A Will may be revoked by a later Will or codicil.

(2) A Will may be revoked by destroying it or by the testator directing another to destroy it in his presence. The writing of the word "revoked" on the Will is insufficient to legally revoke the Will.

(3) A Will made in England or Wales is revoked by marriage unless it is made in contemplation of marriage. A Will made in Scotland , unlike most other jurisdictions, is not revoked by marriage. However, where you have a child after signing the Will, your Will may be revoked if you have not dealt with this possibility in the Will.

Gifts to witnesses.
In general any gift made to those who witness a Will is void. Should you wish to give a gift to a witness you should make provision for this gift in a codicil signed by witnesses other than those you wish to benefit.

Where you die leaving a spouse with no children, your spouse will have a prior right to appropriate the family home and contents plus the first £200,000 of your estate plus half of any surplus over £200,000.

Intestacy rights of spouses and Children in Scotland .
In Scotland , where a testator leaves a spouse and no children, the spouse shall have a legal right to one half of the testator's estate. If the testator leaves a spouse and children, the spouse will take one third of the estate. The legal right of the spouse will take priority over any devices or legacies made in a Will, and ranks in priority after creditors of the estate.

The spouse can exercise a legal right to the fraction of the testator's estate they are entitled to under law or they can waive this right in favor of the testator's bequest.

The legal right of the spouse does not arise under the operation of the law, rather it must be selected in favor of any bequest or legacy they are entitled to under the testator's Will.

The legal rights of a spouse, be it a husband or wife, should be kept in mind when drafting your Will.

Where the testator has failed to make a Will a Spouse will have a prior right to appropriate property up to a value of £130,000 and furniture and fittings up to a value of £22,000. If the testator is survived by children as well as a spouse, the spouse will be entitled to a legacy of £35,000. Where no children so survive the amount of the legacy in favor of the spouse is increased to £58,000.

Children of a testator have a legal right to one half of the testator’s estate.