Homemade will signed only on first page could not be cured of defects by Sheriff Court

About this case:

• Citation:
  [2024] SC JED 3
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff P Paterson

Pursuers Christopher Knapman and Patrick Wadeson sought to cure defects of execution in the purported will of the late Jean Weatheritt. However, it was unclear to the court whether the sole signed page of the document was in fact the final page of the document.

The case was heard by Sheriff Peter Paterson in Jedburgh Sheriff Court. MacLeod, advocate, appeared for the pursuers and no opposition appeared.

Read as a whole

The purported will consisted of three pages, one signed and two unsigned. The signed page, which headed “My Last Will & Testament”, named the deceased, appointed the pursuers as the deceased’s executors and provided instructions for her funeral. It did not provide any guidance as to her beneficiaries and made no reference to either of the other two pages found.

One of the other pages outlined the deceased’s financial position as of November 2015 primarily composing a list of assets. The third page set out instructions in relation to beneficiaries and was dated 24 November 2015. There was one witness to the will, Mr Collins, who gave evidence along with affidavits from the pursuers.

According to the first pursuer, the pages were found stapled together, beginning with the signed page, and in digital form on her computer. The second pursuer advised the court that when he met the deceased in May 2021, she showed him a copy of these documents. Mr Collins only spoke to having seen the signed page of the document.

Counsel for the pursuers submitted that, even though it was stapled ahead of the other two pages, the signed page was meant as the last page of the document when read as a whole. The word “last” in section 7 of the Requirements of Writing (Scotland) Act 1995 referred to the order in terms of preparation rather than the order of the document.

Intended to be first

In his decision, Sheriff Paterson said of the document: “In my opinion there can be no doubt that the signed page is intended to be the first page. First and foremost I have never known a will whether it be professionally drafted, a ‘will form’ or ‘homemade’ that did not, in the first few words, state the name of the testator. Mr MacLeod observed that he had seen suicide notes that had testamentary effect which did not begin with a name. In my judgement that is quite a different situation.”

He continued: “The second thing that goes against this argument is the order in which the documents were found. It is to be inferred that the deceased put the three pages together in the form they were found. I accept in saying this that this strongly points to the three documents reflecting the testamentary intentions of the deceased, but that in and of its self, does not get round the need for subscription.”

Examining the effect of the 1995 Act, the sheriff said: “The definition in section 7 puts the matter beyond doubt. It is talking about the document as a whole and last means the last page of the document. If Mr MacLeod’s suggested interpretation was correct it would mean that much of the protection envisaged by the need for subscription would be lost. All the more so when there is no link connecting the three pages.”

He concluded: “I accept that the consequence of my decision is that the deceased estate will fall into intestacy. However the presumption against intestacy does not assist. The presumption cannot assist in curing a fundamental problem. If there was any ambiguity the presumption might have assisted, but that is not the case.”

The sheriff therefore repelled the pursuers’ pleas-in-law and refused the crave of their writ.