Module 2

Question 1

If a Will is not Self Proving or Probative…

Answer 1

additional form of proof is required for the Courts so as to not defeat a testator who has expressed his or her wishes in an imperfect form.

These are “Privileged Wills”

Question 2

A Will can NEVER be perfected if one or more of the following is missing:

Answer 2

1. testamentary capacity
2. testamentary intent
3. Subscription.

Question 3

Pre 1995 “Privileged Wills”

Answer 3

1. Holograph wills - ie handwritten and subscribed. Extra evidence required by the Courts is prove that it is the testator’s own writing. In absence of evidence to the contrary they are deemed to have been made on the dates they bear.
2. Adopted as Holograph Wills - ie typed or in another hand, and subscribed. Must beart the words “Adopted as Holograph”…courts allowed “Accepted as holograph” on will of a disabled man who typed it ( McBeath’s Trustee v McBeath) but court doubted they’d accept it in any other legal writings doc that wasn’t a will - eg of how hard the courts try to validate Wills.
3. Writings which are partially holograph. Eg the type found in chain stores. If correct form is used and the directions are carefully followed, the Will is perfectly good. These usually fall down in a defect of witnessing. Can the defect be cured by S39 of the Conveyancing Act 1874 (repealed by 1995 Act)?

Question 4

Conveyancing Act 1874, s39 (repealed)

Answer 4

If a document was signed and witnessed, but otherwise defective, then that defect might be cured. This opened the floodgates and almost anything that contains the 3 necessities is accepted provided it is not contrary to the express terms of Statute.

Question 5

Egs of Privileged Wills pre 1995 being cured by s39

Answer 5

1. Lawyer or Testator ommitting to sign on each page but the last.
2. A will which contained unauthenticated deletions and interlineations and the witnesses were not designed in the testing clause was allowed on petition.
3. A Will which does not meet the specifications but the metiod of signing was the usual custom of the granter - ie held that a signature need not be legible. Signature by initials was allowed, a signature “Connie” was allowed in “Draper v Thomason and “Mum” allowed in Rhodes v Peterson.

Question 6

Conditions for valid execution (Self Proving):S3 The Requirements of Writing (Scotland) Act 1995

Answer 6

1. The grantor has subscribed the document
2. A witness has signed
3. the name and address of the witness (which need not be written by the witness himself) is given in the deed or testing clause
4. the name and address was added before the deed was founded upon in legal proceeding or registered for preservation in the Books and Council and Session AND
5. nothing in the deed or testing clause gives an indication that the document was not subscribed by the granter or was not validly witnessed.

Question 7

Pre 1995 Act - valid probative Will would be subscribed and signed by how many witnesses

Answer 7

by 2 witnesses

Question 8

If a Will or other testamentary writing extends to more than one sheet does the signature have to be on every page?

Answer 8

generally yes unless the SHEET has been folded into more than one page and signed at teh end of the sheet it would be regard as a validly executed if signed on the last page only (Baird’s Trustees v Baird)