Is this will valid ?

little_miss_muppet_face

Thanks for everyones help, Have deleted my threads with regards to my questions, as i have found out all i need to know, and dont like to have discussed all this on an internet site., but had no other option really.
I dont want to risk being recognised as other family members may work out who we are.
but thanks again to everyone who responded. xxx

nom_de_plume

No, only one page is sufficient.

http://www.makeawill.co.uk/page-sigining-a-will-file-45.html

nom_de_plume

I edited my post but only one page is needed. I don't know if this is the case in Scotland however.

rpc

In Scots Law, I think the will must be signed by the testator on every page and witnessed on the last page. You should not be able to obtain confirmation without a properly executed document.

See http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm12047.htm

Errata

If only two of several pages have only been initialled then it doesn't carry the willmakers signature.

rpc

little_miss_muppet_face wrote: »

Thats what we thought... Can you also advise about the draft will aswell ?,

what happened was the will was written with the solicitor on the Wednesday, the draft was sent out and one witness sat with the testator and tried to get him to sign the will but he could only manage so initial 2 pages, he passed away later that day.
we are not happy with stuff we have been told is in the will therefore was hoping it wouldnt be legal. Therefore needed to know if this will would likely stand,

Eek. Difficult.

The fact it was a draft is probably not relevant unless it carried words that made clear it would not have effect.

I think there is a case to argue both ways - Scots Law does allow for a will not to be properly executed if the validity can later be proved in court. I do not know the details of this and it would probably make some lawyers very rich. There are also mechanisms where a testator can instruct a solicitor (and possibly someone else, but not a beneficiary or witness) to sign if they are physically incapable (but still mentally competent).

At face value, the will is not properly subscribed and so is invalid. With a solicitor involved and witnesses, I would expect a court battle.

Morally - this draft will represented the last wishes of the deceased. You are unhappy with it, but it isn't your wishes that were documented is it? There was clearly some reason the deceased wanted things this way (and you don't allege any wrongdoing) so who are you to challenge? There are legal points that must be followed, but if you wish to disrupt the dying wishes of someone then have some sympathy.

rpc

Missing out alleged coercion and mental incapacity kind of affects the responses you get. Did the doctors ever say anything about the morphine affecting his judgement? When she had "normal" doses of diamorphine, I could probably have got my wife to agree to anything...

I think that a sheriff will probably refuse to grant confirmation if that will is presented, but I also think there is a case to argue.

Bear in mind that even with a will, offspring have legal rights to half of the moveables. No rights to the house though.

If you can't agree with ex-wife about that status of the will then what will probably happen is this:
- The supposed executor nominate will do the paperwork and apply for confirmation. The supposed executor dative would be advised to challenge this.
- The supposed executor dative (one or more of the children) should also do the paperwork and apply for the grant. The ex-wife cannot be executor dative as she has no right to inherit.

Once one party gets the grant, it will be difficult (read expensive) to undo. The best time to intervene is before it goes before the sheriff.

My feeling is that the will would not be upheld by any sheriff. Subscription is a fundamental part of the execution and there is probably no legal footing for the document. Allowing wills that are not properly executed is opening a can of worms. At the extreme, someone could replace the last pages with whatever they want. However, there is a solicitor, a will file and a witness who saw the testator attempt to sign it. I think that creates an argument that would be heard.

Best thing you could do from your perspective is to see a solicitor, get the C1 and C5/IHT400 filled in and push for a grant of confirmation as executor dative.

Yet I am sure the ex-wife considers that the will accurately represents his last wishes too...

Gingernutty

If the will is invalid according to Scottish law, then the rules of intestacy apply.

I understand that those laws differ in Scotland too.

If your parents were divorced and there was a settlement, why is your mother part of the equation at all?

Gingernutty

rpc seems to have the best advice here.

you need to seek legal advice quickly. From what you've told us, the will is too dodgy to stand up to legal scrutiny and it's in your interests to prove that asap.

Best wishes to you, I'm sorry for your loss.

rpc

You are in a strong position. Make it stronger by going to see a solicitor.

Your description of the will has changed a bit - you now say that it passes the house to the children and simply gives her a life interest? In that case it isn't hers to sell anyway...

As an executor nominate in the questionable will, grant of confirmation cannot be obtained without your involvement. No action can be taken to wind up the estate without your agreement either, unless the will permits executors to act independently (unusual).

I would simply refuse to do anything with the will and gather together everything needed to apply for the grant as executor dative (with consent of the other offspring and perhaps with several of you taking on the role).

Under intestacy, there is no surviving spouse so prior rights don't apply. Legal rights (which apply when there is a will too) grant half the moveables to the offspring in equal shares and with representation if a child has predeceased. This does not include land and property.

The remainder (half the moveables and all heritable property) get swept up under other rights and first in line there are the offspring.

Net effect is that the kids get everything if there is no valid will and no surviving spouse.

nom_de_plume

Is the uncle your mother's brother or your father's? It would also perhaps be worth checking what meds. your father was on on the day the solicitor said he was in good shape. It is, of course, not for a solicitor to make a call on his condition on that day. That is one for a doctor!