Explainer

How do I ensure my will is a legally-binding document?

Scottish legal experts offer advice after US jury rules Aretha Franklin 'will' found under cushions is valid.

Aretha Franklin: How do I ensure my will is a legally-binding document in Scotland? Getty Images

A jury in the United States has ruled that a document handwritten by singer Aretha Franklin and found under her sofa cushions after her 2018 death is a valid Michigan will.

Could such a situation arise in Scotland?

In short, the answer is yes. The newest version of a will supersedes all previous versions, regardless if it was handwritten and discovered under the sofa.

Austin Lafferty, a consultant solicitor in Giffnock, East Renfrewshire, told STV News: “It needs to be on paper, in writing or typing via any medium – ink, pencil… blood! And it needs to be signed and dated, or the date clear.”

“It needs to be on paper, in writing or typing via any medium – ink, pencil… blood!”

Austin Lafferty, consultant solicitor

Lafferty, who is also the former president of the Law Society of Scotland, added: “If also witnessed, the will proves itself. If signed but not witnessed then the signature needs to be proved in court.

“The meaning of the provision – who is to get what – need to be clear. Ideally an executor should be appointed in the will

“The witness either needs to see the signature being made “live” or declared afterwards ( i.e. pointing – “this was my signature”). Note the witness does not need to see or approve the content of the will, just the signature.”

Franklin died in 2018 aged 76 without a formal, typewritten will, and five years later her legacy was still tied up in a Detroit court after a niece found different sets of handwritten papers at her home.

The ruling is a victory for Kecalf and Edward Franklin, whose lawyers had argued that papers dated 2014 should override a 2010 will that was discovered around the same time in a locked cabinet at the singer’s home in suburban Detroit.

Ken McEwan, chief executive of McEwan Fraser Legal, said: “A current will supersedes any previous wills and it is important to insert a revocation clause in the will.

“The grantor of a will must be of sound capacity when signing , or less the will can be contested by anyone who has been left out or has not been left as much as expected or if they think the will is wrong in some way.

“This is why you should always use a lawyer when drafting a will because a lawyer can confirm capacity and the will is much less likely to be contested.

“In theory, you could scribble your will on a piece of scrap paper and it doesn’t have to be witnessed by a lawyer but a will in Scotland must be signed on every page and witnessed by least one person.

“The witness must be an independent adult who isn’t related to the grantor and has no personal interest in the will. A beneficiary or potential beneficiary or a spouse or civil partner of beneficiary cannot witness a will. A neighbour or family friend is ideal.”

“In Scotland, natural or adopted children are entitled to a third of the movable estate. Even if mum/dad didn’t want to give anything, its impossible to disinherit them unless you left your entire estate in land or property.”

A valid will in Scotland, if executed on or after August 1, 1995, must conform to the Requirements of Writing (Scotland) Act 1995.

The act requires the document to be self proving, that is a written document, subscribed by the testator, signed on each separate page and witnessed on the last page by one identified person who is over 16 years old and has no mental impairment.

However, a valid will does not need to be self proving, provided it can be separately proven that the testator did sign the document and had capacity and testamentary intention.

For a will to be valid in Scotland, it must be all of the following:

  • made by a person who is 12 years old or over 
  • made voluntarily and without pressure from any other person
  • made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who might inherit
  • made in writing
  • signed by the person making the will on every page
  • signed by the person in front of a witness.
Jed Jacobsohn / Staff via Getty Images

In Franklin’s case, there were differences between the 2010 and 2014 versions of her wills, though they both appear to indicate that Franklin’s four sons would share income from music and copyrights.

But under the 2014 will, Kecalf Franklin and grandchildren would get his mother’s main home in Bloomfield Hills, which was valued at 1.1m US dollars (£850,000) when she died but is worth much more today.

The older will said that Kecalf, 53, and Edward Franklin, 64, “must take business classes and get a certificate or a degree” to benefit from the estate. That provision is not in the 2014 version.

Citizens Advice Scotland advise using a solicitor to make sure your will is legally valid, as well as ensuring there are clear instructions for your executors.

They say if you write the will yourself, it’s easy to make mistakes that can cause complex problems after your death, adding that sorting out misunderstandings and disputes in court can result in legal costs that reduce the amount of money in the estate.

Once a will has been made the original document should be kept in a safe place. Other documents should not be attached to it because this can make it more difficult to find. There are a number of places where you can keep a will:

  • with a solicitor. Make sure that someone knows which solicitor’s office holds the original will
  • at a bank although it might charge an annual fee
  • at home. If you keep a copy at home it’s a good idea to put it in an envelope that is clearly labelled. It is generally not a good idea to keep an original will at home as it can get damaged.
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