What makes a Will valid for probate in Scotland?
A Will is a legal document that describes what should happen to someone’s estate after they die. When applying for Confirmation in Scotland, you need to have the deceased person’s Will. This help guide explains what criteria the Will needs to meet, and what to do if you don’t have the original Will or if the deceased person didn’t leave a Will.
In this help guide
- Probate and Confirmation: why you need the Will
- Validating a Will for Scots law
- What counts as an ‘original version’ of a Will?
- What to do when there is no Will
Probate and Confirmation: why you need the Will
During the probate process in Scotland, you might need to apply to the Sheriff Court for Confirmation. Confirmation is the legal document that gives you the authority to deal with the deceased person’s estate.
Not every estate needs to get Confirmation. If you’re not sure whether you need to apply, use our
free Confirmation checker tool.
When applying for Confirmation, you need to have the deceased person’s Will, if they had one.
The Will could have been made using a solicitor, a professional Will writer, or be a homemade Will. But to be accepted by the Sheriff Court, the Will has to meet the criteria of Scots Law.
What makes a Will automatically invalid?
Regardless of any other factors, a Will won’t be classed as a legal document in Scotland if:
- it is not properly signed
- it is written in pencil
- it has been destroyed
- the courts find that the person making the Will was not of sound mind, or was put under pressure to write it
If a Will has been altered in some way, it may still be accepted as a legal document. But this is decided on a case-by-case basis. For advice about this from one of our experts,
book a free call.
What does Scots Law say about Wills?
The law in Scotland asks for specific things from a Will. Scottish Wills are different from ones made in England, for example.
Scots Law states that, to be valid for Confirmation, a Will must:
- be the original version
- be signed on every page by the person whose Will it was
- be signed on the final page by at least one witness who is over 16 years old
- have the date and location of signing written on the final page
Your application for Confirmation will be rejected if you submit a Will that doesn’t meet these requirements. But if the Will doesn’t meet all the criteria, you can often get it validated.
We can check the Will for you
Our probate experts can check the Will and let you know if it’ll be accepted by the Sheriff Court when you apply for Confirmation.
Book a free call with us so we can check the Will for you.
Validating a Will for Scots law
How to validate a Will made in Scotland
If a Will was made in Scotland, but doesn’t conform to all the criteria of Scots Law, then you might be able to validate the Will so that it will be accepted by the Sheriff Court. You can validate the Will if:
- the person making the Will has signed the final page
- at least one witness has signed the final page
- this witness is still alive
You can apply to validate a Will by submitting a ‘Requirements of Writing’ application to the Sheriff Court. You’ll need a sworn statement (an ‘Affidavit’) from a witness who signed the Will.
Our probate experts can help you to validate a Will. For a free 15 minute chat,
book a call.
If a Will does not meet the criteria of Scots Law, and it cannot be validated, then there might be legally no Will. This would mean that you can’t use it when applying for Confirmation and you may not be able to honour their wishes. In this case, see the section 'What to do when there is no Will'.
How to validate a Will made outside of Scotland
If the Will was not made in Scotland, but is valid in the country where it was made, it needs to be validated by a solicitor before you can apply for probate in Scotland.
You need to use a solicitor based in the same country where the Will was made. This doesn’t need to be the same solicitor who made the Will.
The solicitor needs to:
- sign a document that states the Will is valid in the country it was made
- write and sign a statement on the original Will
Solicitors in England and Wales normally charge around £200 for this service.
Our probate experts can:
- recommend a solicitor who can validate it for you (in England and Wales)
- provide you with a template for the solicitor to fill out
- To speak with our probate experts,
book a free call.
How to find a Will
To find out whether the deceased person left a Will, we recommend (in this order):
- asking their solicitor
- asking their friends and family
- looking at their paperwork
- searching the
National Will Register
What counts as the ‘original version’ of a Will?
The original version of the Will is the paper version that has been signed in ink. You need this for the Will to be accepted by the Sheriff Court for Confirmation.
Finding the original version
If you can’t find the original Will document, try:
- contacting the solicitor who made the Will
- looking thoroughly through the person’s paperwork and belongings
If you are listed as an executor, the solicitor must give you the original Will document for free. You do not have to use that solicitor to apply for Confirmation.
If you can’t find the original Will, then there might be legally no Will.
When will the Sheriff Court accept a copy of a Will?
The Sheriff Court will only accept a copy of the original Will if it was officially registered with either the Registers of Scotland or the Sheriff Court. This is usually only done by solicitors after someone dies.
You can also bring an action through the courts called ‘proving the tenor’. However, you’d need to use a solicitor and this can be a lengthy and expensive process.
If you can’t find the original Will and are not sure what to do, you can book a free call with us.
What to do when there is no Will
If there is no legally valid Will, the law decides what happens to the deceased person’s estate. These rules also decide who should be the executor.
For deaths after 1 May 2024, you can find out more about this on the government website.
You can find out more in our help guide How do I deal with an estate when there is no Will in Scotland? or book a free call with one of our probate experts.
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