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Category: Private Client

Published: 01 February 2024

Validity of Wills - Court's refusal to cure defects of Execution



The problem with people preparing their own home-made wills has again been highlighted in a recently issued judgement in the case: COMMISSARIOT OF LOTHIAN AND BORDERS SHERIFFDOM OF LOTHIAN AND BORDERS [2024] SC JED 3 JUDGMENT OF SHERIFF P PATERSON in the cause (FIRST) CHRISTOPHER KNAPMAN and (SECOND) PATRICK WADESON Pursuers JEDBURGH, 4 NOVEMBER 2022.

In this case the pursuers were seeking to invoke the terms of the Requirements of Writing (Scotland) Act 1995 (the Act) to cure the defects of execution of the purported will of the deceased.  The “will”  was clearly not professionally drafted and not was it a template or pro-forma will style.  The problem was that of three pages said to comprise the will only one was signed and witnessed,  and because this signed page was held to be the first and not the last page of the will, there was no subscription and the will failed for reasons of lack of formal validity.   As a result, the estate of the deceased fell into intestacy.

Whilst courts commonly encounter applications under section 4 of the Act to cure a defect where a will has had only the last page signed and these are normally granted without difficulty, albeit with the additional legal cost and delay to the estate of rectification,  the difficulty in this case turned on the question of subscription, it not being clear that the signed was the last page.  The typed will began conventionally with the words “MY LAST WILL & TESTAMENT. Being of sound mind I, Jean Dorothy Weatheritt”. It went on to appoint the pursuers’ as her executors. It then gave instructions for her funeral. It is signed, dated 27 January 2016 and witnessed. What it did not do was to provide any guidance as beneficiaries. Nor did it make any reference of any sort directly or by implication to the other two pages.  There was a page headed “Financial State as at November 2015” which appeared to be in the main a list of assets. It was  not signed or dated beyond the heading. It contained no links to the other two pages. The other page sets out instructions in relation to beneficiaries and is dated 24 November 2015. Again there was nothing to link this page to the other two pages.

The court’s starting point was that there is a presumption against intestacy,  however,  S 2  of the Act set out the requirements for execution of certain documents referred to as traditional documents, included in this are wills.  S 3 highlights the need for subscription by the grantor in the presence of a witness. There is a specified requirement for subscription as well as signing by the grantor on each page of the document.  The court took the view that the subsection therefore makes it clear that there is a distinction between signature and subscription. The implication of this subsection is that when reference is made to a subscription it is referring to the signing at the end of the last page of the will. This matter is put beyond doubt by section 7 which defines subscription in the following terms: “Subscription and signing (1) Except where an enactment expressly provides otherwise, a traditional document is subscribed by a granter of it if it is signed by him at the end of the last page (excluding any annexation, whether or not incorporated in the document as provided for in section 8 of this Act).

In the judgment, a large number of  older  decisions of the Court are cited all of which highlight and explain the importance of subscription and that the absence of this implies an intention on the part of the testator not to regard the document as final or complete  :  

Taylor’s Executrices v Thom 1914 SC 79, Lord President Strathclyde (giving opinion in favour of the majority) observed (at page 82): “This Division of the Court has more than once expressed the opinion ‘(1) That they would not in the future sustain any document as a will which did not bear the subscription of the testator; and (2) that the recital of the testator's name in the commencement of a holograph writing would not be sustained as a subscription or its equivalent.’ I am quoting from the words of Lord M'Laren in the case of Goldie v Shedden.  

Foley v Costello,  Lord Trayner: ‘I think the law of Scotland requires subscription as the essential and only admissible evidence of a concluded expression of will on the part of a testator. … In my opinion the rule is inflexible —no subscription, no will —and to admit the consideration of facts and circumstances to modify that rule would be very inexpedient and dangerous.’ Lord Moncreiff says in the same case —‘Subscription is the test of a holograph will,’ and ‘the want of subscription cannot be supplied by parole proof.’” And he concluded (at page 83): “Now, I hold that it is now the settled law of Scotland that the lack of a subscription indicates an intention on the part of the testator not to regard the writing as a final and complete act. As Lord Fullerton observed in the case of Dunlop v Dunlop, ‘the necessity of subscription to a will is a matter which depends on no technical rule … but is familiar to all the lieges.  Every man knows the difference between a deed that is signed and one that is unsigned. It appears to me, therefore, that the deceased must have believed and understood that the writing was not effectual so long as he withheld his subscription from it, and that, if we now sustained it as a valid instrument, we should be making a will, which the party died believing to be ineffectual.’  

Skinner v Forbes,  Lord Dees holds that: ‘There are no doubt advantages in holding that subscription in such cases as this is essential. That rule puts matters of this kind beyond all question, as every man then knows that so long as he does not subscribe a testamentary deed it is not completed, and that he has power to recall it whenever he likes, or not to complete it at all.’” This has been referred to as the “golden rule”.

The reasons for the importance placed on subscription are clear and obvious, namely fraud prevention. If a will only requires to be signed on any of its pages, it would be a relatively simple matter to substitute pages not seen by the testator. The need for a subscription significantly reduces this risk.

Although counsel for the Pursuers in this case tried to persuade the Sheriff to cure the defects,  by advancing the submission that the signed page was indeed the last page of the will, in the Court’s opinion there was no doubt that the signed page was intended to be the first page.  The Sheriff stated “ first and foremost I have never known a will whether it be professionally drafted, a “will form” or “homemade” that did not, in the first few words, state the name of the testator.” The second thing that went against this argument was the order in which the documents were found. It was to be inferred that the deceased put the three pages together in the form they were found, and whilst it was noted this that this strongly point to the three documents reflecting the testamentary intentions of the deceased,  that in and of itself,   did not get round the need for subscription.

The court also accepted that it was likely that the three pages were created in the order the dates suggest and therefore the signed page was the last document chronologically, but that still did not make it the last sheet as described in section 3(2) of the Act. It was commented on by the Sheriff that it would be a bizarre document that began with a list of assets! In the Court’s opinion the definition in section 7 put the matter beyond doubt. The correct approach i to take   the document as a whole and last means the last page of the document. The Sheriff considered that if counsel’s suggested interpretation was correct it would mean that much of the protection envisaged by the need for subscription would be lost. All the more so when there was no link connecting the three pages. Given that the court was  of the opinion the signed page was the first page there could not have been subscription. The court accepted  that the consequence of its decision was that the deceased estate fell into intestacy. However, the presumption against intestacy did not assist. The presumption could not assist in curing a fundamental problem with the execution of the will. If there had been ambiguity the presumption might have assisted, but that was not the case.

This decision tells a further cautionary tale about the consequences of not taking legal advice when making your will. Our team of experienced private client solicitors would be happy to assit you and make sure that your will meets all the requirements of legal formality in order  to protect your beneficiaries and your estate.



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