In the context of estate planning, creating a will is a crucial step to guarantee the orderly allocation of your assets once you're no longer here. Nevertheless, in Scotland, it's not simply a matter of jotting down your wishes. There are specific legal prerequisites, and one important factor to consider is the choice of an appropriate witness when signing your will.
Here at d and h, we fully comprehend the importance of will writing. In this article, we aim to highlight the criteria for the selection of a suitable witness for your will.
The Significance of a Will
A will is a legal instrument that serves as your voice after you're no longer here. It articulates your desires and instructions regarding the distribution of your estate. First and foremost, a will guarantees that your wishes are respected. It allows you to specify how your assets, belongings, and finances should be allocated. This ensures that your intentions are legally upheld, offering you peace of mind.
For those with dependents, especially minor children or pets, a will is indispensable. It provides you with the opportunity to name a guardian who will ensure the well-being and care of your loved ones. It is important to remember that a will is legally binding, regardless of the size of your estate. It creates a clear and legally enforceable statement of your wishes, eliminating confusion or disagreements among your beneficiaries.
What Should a Will in Scotland Include?
A valid will in Scotland should incorporate various elements, without which it may not hold up in a court of law. Begin with your accurate basic personal information, including your full legal name and address. The document should contain legal language that explicitly declares your testamentary intent, making it clear that it's your will. While you can write a will yourself, it is recommended that you seek the advice of a solicitor, or select a solicitor to write the will for you to ensure it holds up in a court of law.
You should name the individual(s) who will be responsible for executing your wishes, known as the executor(s). If you have children under the age of 18, or pets, designate a guardian to ensure their well-being in your absence. Clearly state your chosen beneficiaries and specify any particular items you wish to bequeath, with exceptions if necessary.
Choosing a Witness for a Will in Scotland
In Scotland, a will needs to bear the signature of the granter (the person creating the will) at the foot of each page. Furthermore, the granter's signature must be observed and confirmed by an independent witness. For the will to be legally valid, the witness must meet certain criteria, as outlined below.
Age and Credible Information
The witness must be at least 16 years old, a legal requirement in Scotland that ensures their competency to oversee the will's signing. More than just their age, the witness should possess credible information about the testator's (the person who is writing the will) identity at the time of signing. This means they play a crucial role in confirming the identity of the person creating the will. For example, a former work colleague or sports teammate may be ideal as they are likely not related to you.
Sight and Literacy
In addition to age and identity verification, the chosen witness must not be blind, ensuring their ability to observe the signing of the will. In relation to this, the witness must not be illiterate, meaning they should have the capability to write their name. These requirements are in place to ensure that the witness fully understands their role and responsibility in the process.
Avoiding Conflict of Interest When Choosing a Witness
While meeting the criteria mentioned above is crucial when selecting a witness, there is another significant consideration: avoiding any potential conflicts of interest. It is strongly advised that the witness should not be a beneficiary of the will or related to a beneficiary. This precautionary measure safeguards the authenticity and impartiality of the witnessing process. Opting for an independent and unbiased witness is not only wise but also ensures the document's validity and credibility.
Seeking Legal Guidance
While it is entirely possible to draft a will without a solicitor, it is recommended that the advice and support of a trusted solicitor is sought when planning your estate in Scotland. Choosing a witness, understanding the legal intricacies, and ensuring your will complies with all the necessary criteria can be daunting tasks. A qualified solicitor possesses the knowledge and expertise to navigate these complexities, ensuring your will is legally sound and in accordance with your wishes.
At d and h, we are your trusted partners in estate planning, here to guide you through the challenging decisions regarding your assets and the future. Our dedicated team can provide expert advice not only on will creation but also on matters relating to what happens upon your passing or if you become seriously ill or incapable of making decisions for yourself.
Contact us today to discuss how we can help.