REQUIREMENTS FOR MAKING A VALID LEGAL WILL
(Scottish Wills)

Capacity to make an Scottish Will.
In order for a Will to be valid it must be made by a person who has attained the age of eighteen years or over, or is married 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.

Requirements for signatures.
Section 78 of the 1965 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 signature must be 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 present at the same time with the testator, and each witness will then be required to give their signature in the presence of the testator. The witnesses need not be present when the testator signs the Will provided they are both present when he acknowledges the signature. In certain US States three people are required to witness a Will before it can have legal effect.

Revocation of Scottish Wills.
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 may be revoked by marriage, unless the Will is made in contemplation of marriage.

Gifts to witnesses.
In general any gift made to those who witness a Will is prima facie 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.

Legal right of a spouse.
In the Republic of Ireland, 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.

Proper provision for children.
Where the court is of the opinion that the testator has failed in his moral duty to make proper provision for a child in accordance with his means, the court may order that such provision shall be made for the child out of the testator's estate as the court thinks just. The court will consider the application from the point of view of a prudent and just parent, taking into account the position of each child and any other relevant circumstances existing at the date of the testator's death.

UK Wills: STG£27.95