Testing Clause not on the Will

I have read that the testing clause on a Will can be inserted at any time before the will is founded upon.  Does this mean that I can insert it before applying for confirmation ie after the grantor has passed away?

Background info : My parents had 'twin/ mirror' wills made when they bought their house. Dad has now passed away.    I am named as second executor along with the solicitors firm that prepared the wills.  I have requested a letter of declinature from the solicitors as intend to go it alone and save mum some money.   My mum is the sole beneficiary. 
    
Both the wills are the same and dated on the front cover page with the year but no other date. At the end/ last page there is a section, above the witness signatures and granter signature, written in  pencil which says to leave this section blank / do not write here.   I assume that this is where the information on where and when signed would go and I wanted to ask if I can do this myself before submitting the Confirmation form.  I have the information as to where and when.

Neither of the two witnesses are designed either.  Should I fill this information in too ie below the witness signatures ?   Same witnesses for each will, both predeceased .  

By way of explanation it appears to me that my parents did not return the wills after they got them witnessed.  There is a stamped address envelope with the Wills and a covering letter asking them to get them signed and return in the envelope.  For whatever reason, looks like this did not happen.   

Welcome any assistance with this as the solicitors firm named on the will has asked for a copy of the will and my ID before they will issue the letter / minute of declinature.  

They wrote to me advising that :

1.       Initially for us to draw up the letter of declinature, it would be around £125-£175 + VAT (depending on the complexity of the wording of the deed), which would likely also include the costs of sending the deed out to you once signed as well. 

2.    If, as you mentioned, there is no note of the date and place of signing, this may add substantially to the costs of confirming the way in which it should be set up to make it formally valid (this is the term used by the court to confirm when a will is valid and can be used to obtain the grant of confirmation). 

Any guidance on this would be very welcome.  TIA
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  • buddy9
    buddy9 Posts: 418
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    ETSL21 said:
    ....................

    Neither of the two witnesses are designed either.  Should I fill this information in too ie below the witness signatures ?   Same witnesses for each will, both predeceased .  
    Two witnesses? Is this therefore a Scottish will prior to August 1995?
  • buddy9 said:
    ETSL21 said:
    ....................

    Neither of the two witnesses are designed either.  Should I fill this information in too ie below the witness signatures ?   Same witnesses for each will, both predeceased .  
    Two witnesses? Is this therefore a Scottish will prior to August 1995?
    Hi,  Yes. Parents purchased their flat in 1988 and the wills were set up at the same time.
  • It seems fairly straight forward for me to add in the date and place of signature.  Particularly as my mum and three siblings are aware that it was signed at our family home.  Straightforward will leaving everything to my mum. 

    I have read that while it is best practice that it is added at the time of the will being drawn up it can be added at any time before the will is founded upon    I assume 'founded upon'  means in legal proceedings and that this would include seeking Confirmation from the Court.   

    My concern would be that in adding in the date and place of signing might be deemed to be altering the will though I can't see that it could be classed as this as we would not be altering or amending the clauses within the will, simply adding in the date and place.   This is known to us, and confirmed by my mum  who signed hers at the same time (in the family home which she still lives in).

    I am stressing out over this and hopefully unnecessarily.

    Any advice?
  • buddy9
    buddy9 Posts: 418
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    There is a process for applying to the court by writ for special authority to issue confirmation in cases where there are certain defects with a will. This is generally what the solicitor is referring to as ‘set up’ the will.

    You have a will which has no date of signing, no place of signing and the witnesses are not designed. But are there defects with the will? Below are some extracts from Currie on Confirmation of Executors which may assist.

    ……………………………..

    A will subscribed prior to August 1995 by the testator on each page and attested at the end by two witnesses, who are properly designed, is ex facie probative, and may be founded upon without further proof.

    Witnesses

    Designation of witnesses could be appended to their subscriptions.

    …where the witnesses are not so named and designed their designations shall be appended to or follow their subscriptions; and such designations may be so appended or added at any time before the deed, instrument, or writing shall have been recorded in any register for preservation, or shall have been founded on in any court, and need not be written by the witnesses themselves.

    Witness designation might have been inserted by someone else

    Testing clause

    Under Scots law. It has never been essential to specify the place and date of signing….Currie 4-102 

    Although the place and date of signing were customarily inserted into the testing clause of pre-1995 testamentary writings, there is no requirement for this under Scots law 

    The testing clause might be filled up at any stage - long after the signing, and even after the death of the testator.

    A testing clause is not required


  • user1977
    user1977 Posts: 13,341
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    Adding the testing clause is not altering the deed itself - it's normal practice for the details to be added post-signature, doesn't matter whether it's 5 minutes after or 5 years after. The more problematic issue after this length of time would be not knowing the details, but it sounds like that isn't a problem here.
  • Thank you both.  

    On balance I think that it would be better to have the info there ie I should add it in since we know it and mum able to confirm what me and my siblings recall.  From the info you have given me I think it would be acceptable to do this  (on both wills).  I am not sure if I should do this before I send a copy of the will to the solicitors named on the will given that when I spoke to him I said that there was no date  or witness names and addresses on the will - just both their signatures and Dads signature.

    The solicitor has asked me to send him a copy of the will and my ID before he can issue the letter of declinature.

    Also, wondering if I should ask him to confirm that they don't hold a will for Dad - the will I have was with Dads papers and I contacted the firm named and the person I spoke to told me they no longer held wills from that time and gave me another Solicitors contact number.  I contacted that firm and they checked their 'vault' and said they did not hold the will so I therefore took the will with Dads papers as the original.


  • buddy9
    buddy9 Posts: 418
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    ETSL21 said:
      ....................I am not sure if I should do this before I send a copy of the will to the solicitors named on the will given that when I spoke to him I said that there was no date  or witness names and addresses on the will - just both their signatures and Dads signature.
    I share your uncertainty.
  • 'You have a will which has no date of signing, no place of signing and the witnesses are not designed. But are there defects with the will? '

    buddy9 - I can see no defects with the will.   Each parents will leaves everything ' whole estate' to the other  (the house has a survivorship clause).  It seems a very straightforward will. 
  • ETSL21 said:
      ....................I am not sure if I should do this before I send a copy of the will to the solicitors named on the will given that when I spoke to him I said that there was no date  or witness names and addresses on the will - just both their signatures and Dads signature.

    As I have already given the will to the banks to copy maybe best to just send as is to the solicitor. 

    I also found the 'Direction for signing Deeds' schedule and the covering letter that was posted out with the wills (June 1988) among Dads papers.   The details on the schedule are presumably for the solicitor to use to  'complete details of signature'.  As I said it just looks like they never got around to returning the wills for this to be done.

    From the extracts you kindly provided from Currie on Confirmation of Executors  I think it would be acceptable to input the date and place of signing and to design the witnesses ( my aunt and uncle, now deceased).

    That said I would welcome any advice or caution.  TIA
  • buddy9
    buddy9 Posts: 418
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    If the house has a survivorship clause and is therefore outside the estate for Confirmation purposes, do you need Confirmation for other assets?
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