A properly executed Will should give families peace of mind, ensuring that a loved one’s wishes are honoured after death. However, if a Will does not meet the legal standards outlined in the Requirements of Writing (Scotland) Act 1995, it can lead to complications and delays. In this blog, we will explore what to do if a Will has not been signed properly.
If a Will is deemed invalid under this legislation, the deceased’s estate may be distributed under a prior valid Will, or if no other Will exists, in accordance with Scotland’s default succession laws.
Fortunately, it is possible to apply to the Sheriff Court to rectify—or “set up”—an improperly signed Will. At Weir Law Solicitors, we can guide you through this process.
What Makes a Will Valid?
For a Will to be valid in Scotland, it must meet the following requirements:
- The Will must be in writing—handwritten, typed, or printed.
- At the time of signing, the person making the Will must understand the nature and effect of the document.
- The testator (person making the Will) must sign each and every page.
- A witness (aged 16 or over and mentally capable) must be present at the time of signing. This witness must sign the final page and include their full name and address.
- The Will must clearly state the testator’s intentions regarding distribution of their estate.
If a Will is not valid, the named Executor(s) must apply to the Sheriff Court to have the Will rectified.
What You’ll Need to Rectify the Will
The Application: a legal document prepared by a solicitor outlining who is involved, the issue with the Will, and how it occurred. Affidavits (i.e. sworn statements from witnesses or people who can attest to the validity of the Will) must accompany the application.
The Affidavit: a sworn statement signed by the witness to the Will—or the individual who drafted it—confirming their involvement. It must be notarised, meaning a notary public must be present and officially endorse the statement.
What to Do If a Will Cannot Be Found
Similar complications arise when a loved one’s Will cannot be located after their death, even if you know it existed.
In such cases, the estate will be distributed under Scotland’s default succession laws unless the Will can be established through legal means.
How Can a Will Go Missing?
A Will may be stored at a solicitor’s office or kept at home. Regardless of where it is stored, Wills can be accidentally lost, destroyed, or misplaced—especially during moves or transitions.
Thankfully, Scots law provides a remedy through a legal process known as ‘Proving the Tenor’.
The Process of Proving the Tenor
As a potential executor or beneficiary—such as a spouse, child, sibling, or parent—you can apply to the Sheriff Court or Court of Session to prove the terms of the missing Will.
A successful application results in a decree (i.e. a formal Court ruling) confirming the terms of the Will, which can then be treated as legally binding.
To succeed, you must prove:
- The terms of the Will
- That the Will was executed (signed)
- The circumstances of its loss.
Each step requires solid evidence to satisfy the Court.
If the Deceased Held the Will
If the deceased kept the original Will and it cannot be found, the law presumes it was intentionally destroyed, rendering it invalid.
This presumption is difficult to rebut, even with supporting evidence.
What the Court Requires
In addition to physical evidence, the Court requires written statements detailing how the Will may have gone missing and why it likely wasn’t destroyed intentionally.
Statements can be submitted by anyone, but those from the Will’s witness(es) or the drafting solicitor carry the most weight. A solicitor can advise you on gathering the strongest evidence.
Get the right legal advice now
Navigating the legal challenges of an invalid or missing Will can be overwhelming. At Weir Law, we’re here to provide guidance and support every step of the way.
Contact us today for a free chat on 0141 628 5544, email info@weirlaw.co.uk or Make An Online Enquiry.