The words in the title appeared in the notebook of Mrs Melanie Gibson who died on 7th October

2012. Her notebook also included other wording as follows:

20/01/12
Nearly 51?
Please remember. If Anne is still alive, I want her to have my wealthy remains the house,
pension, savings and everything else
I hope my family accept this
IT IS MY WISH.
Melanie Gibson
20/01/12

It is clear Mrs Gibson was not a fan of lawyers: she wrote and signed the above passage herself
without the help of a lawyer greedy or otherwise. In the end, after two court cases, the writing
above was held to qualify as a valid Will. But that exercise will have proved much more
expensive for all concerned than making a properly valid Will in the first place.

The aim of this Note however is not to bang a drum about the wisdom of consulting a lawyer
about making a Will. It is to look at the case of Mrs Gibson to note that, in principle, the
requirements for making a valid Will are modest more modest than is sometimes thought.

The Requirements of Writing (Scotland) Act 1995 and formal validity

The long title of the 1995 Act is to reform the law of Scotland with regard to the requirement
of writing for certain matters and the formal validity of contractual and other documents

In particular, the Act says that a persons Will has to be in writing. That is just as one would
expect: a Will has to be written down. Unlike many contracts, a will cannot be made orally.

As far as its formal validity is concerned the Act says that it must be signed by the person making
the Will at the end of the last page. Strictly speaking nothing more is required as far as formal
validity goes. In particular a witness to the signature of the granter of the Will is not necessary.
It is certainly desirable because without the Will being witnessed there are some hoops to jump
through before the estate of the granter of the Will can be administered following his or her
death. But a witness is not required for the Will to be formally valid. Subscription of the Will by
the granter is enough.
Essential validity

The 1995 Act however is concerned with formal validity: that is the Will must be in writing and
must be signed at the end by the granter of the Will.

But there is another important aspect of the matter. A Will must be both formally valid and
essentially valid. For it to be essentially valid the granter of the Will must, in particular, be at
least twelve years old; must have the necessary mental capacity to grant a Will; must not have
been subject to any undue influence from others as to the terms of the Will says; and the Will
must be the granters concluded wishes about what is to happen to their property on death.

It is the last of these requirements that was the most crucial in Mrs Gibsons court case.

Of course, in relation to a formal document clearly named Will by James Bloggs and drawn
up by solicitors it will usually be clear that it represents the granters concluded wishes as to
what is to happen to his or her property on death. For good measure, and to put matters beyond
any doubt, formal Wills drawn up by lawyers usually start with words to the following effect:
in order to settle the succession to my estate after my death provide as follows

But home-made Wills are sometimes equivocal as to whether the writings in question actually
represent the granters concluded wishes. Sometimes the terms of the writings may be
expressed tentatively and indicate that they are not the concluded wishes but are mere jottings
or draft provisions as to what the granter might wish to do but has not yet quite decided upon. It
all depends upon the precise wording and the general context in which the writings appear.

If the wording does not amount to the concluded wishes of the granter then the Will does not
qualify as being essentially valid. It was primarily that question which arose in the case of Mrs
Gibson to which we now turn.
Mrs Gibsons Will

What was said to be Mrs Gibsons Will was the entry, quoted at the start of this Note, made by
her in her own handwriting in a notebook of hers and signed by her at the end.

That entry is expressed in ordinary everyday language: it is not expressed in formal language.
But its formal validity was not really in issue in the court cases. It was accepted that the writing
was made by Mrs Gibson and signed by her at the end and that that was enough for formal
validity.

The crucial question in court was whether the writing represented Mrs Gibsons concluded
wishes as to what was to happen to her property on death. In other words it turned on whether
the writing was essentially valid as a Will.

Initially the court decided that in its context this did not qualify as a valid Will. On appeal however
that decision was reversed. The Sheriff Principal found that the document is in [Mrs Gibsons]
hand and properly subscribed [i.e. signed by her at the end]. In my view it is difficult to
contemplate a will in clearer terms.

So, Mrs Gibson (or rather her beneficiary) got there in the end. But its fair to assume that if she
had made her Will with the help of a lawyer she would have got there sooner and more
cheaply.

Note: This material is for information purposes only and does not constitute any form of advice or
recommendation by us. You should not rely upon it in making any decisions or taking or refraining
from taking any action. Contact Mitchells Roberton Lawyers Glasgow for more information.