Wills and Clarity of Intention

Wills come in many shapes and forms. It is quite possible that quite informal writings can attain an importance which the person writing them may not have meant.

25 years after the commencement of The Requirements of Writing (Scotland) Act, 1995, the common law still comes in handy. Section 7 (2) (c) of the Act provided that signing your (a) full name or (b) surname plus a forename or initial or a familiar form of forename are all valid forms of signature. That seems straightforward enough.

But, there is an exception in section 7(2)(c) which permits the use of another name or description or initials or mark but only where two matters are established, namely, that (i) it is the deceased’s usual method of signing documents of the type in question and (ii) that it was intended as a signature of that document. What is involved in this two-stage test?

A couple of far older cases illustrate the effect of the first part of this test since there has actually been no reported cases on the point since the 1995 Act came into force. In the case of Draper v Thomason (1954), it was held that signing the document “Connie” was sufficient. In the case of Rhodes v Peterson (1971), it was held that signing the document “Mum” was sufficient.

With regards to the second part of the test in section 7(2)(c ) test, there has been one relatively recent case, namely, Hamilton, Petitioner (2015). In this case, the document in question had been adequately signed by the deceased thereby passing the first part of the test. However, there was a dispute as to whether the deceased had actually intended the document to be a will. This was because it was in the form of a fairly colloquial message discovered in a notebook which had remained private until the time of the deceased’s death . The message read:

“20/01/12 Nearly 51! Life is shit at this time! *Please remember, If Anne is still alive, I want her to have my wealthy remains – the house, pension, savings and everything else… I hope my family accept this IT IS MY WISH (signed) Melanie Gibson”

The Court decided that it was not the informal manner of the document which was important. The primary test was the language used. In this case, the Sheriff Principal paid particular attention to the phrase “wealthy remains”. He considered that that phrase suggested a clearly concluded testamentary intention, namely, it had been intended as a will.

However, three issues arise from this. Firstly, the informality of the writing did lead to costly litigation. Secondly, it did lead to uncertainty. The Sheriff Principal’s decision on appeal was actually different from the Sheriff’s decision. Thirdly, the informality of writing the will in a private notebook meant that there was a serious risk that it may never have seen the light of day had the notebook fallen into the wrong hands.

The conclusion is simple. The law can act as a “safety net” in certain circumstances. But, it is always worthwhile setting aside time to instruct a solicitor to draft a will for you and keep it in their firm’s safe. Then, there is no doubt as to what you intended for your loved ones.