Most people in Scotland ask their solicitor to help them draw up their Will.
A Will is a formal legal document and it is most important to make sure it is properly prepared.
Having gone to all the trouble of making sure it has been properly prepared, please don’t try to update it by scribbling a few notes about it. This has been highlighted in the case recently heard in the Commissary Court in Edinburgh (Cummins and Tierney [2021] SC EDIN 60) where the handwritten notes were, literally, written on the back of an envelope!
Why were the handwritten notes a problem in this case?
The executors of the Will asked the court to declare the handwritten notes found on the envelope containing a copy of the deceased’s Will had the effect of altering the deceased’s Will.
The circumstances surrounding this case are as follows:
Miss Mary (also known as Maureen) Downey made her Will through a solicitor in 2012. Whilst she was an Irish citizen, she had been living in Scotland for many years at the time she made her Will and considered her domicile to be Scotland. In 2017, she moved back to Ireland to a nursing home in Cashel, Co. Tipperary. She died at Cashel in September 2019 at the age of 93.
When her executors were gathering up her belongings from the nursing home, they found a copy of her Will in what appeared to be the original envelope send to her by her solicitor. On that envelope there are writing on the front and on the back.
On the front of the envelope, there was the letter “W” inside a square box and to the right of that were written the date “12/12/12”.
The envelope was window envelope capable of taking an A4 sheet of paper without folding it and below the window the words “*** Back of this envelope” were written.
On the reverse of the envelope, the following were found:
“***” followed by “6.16 + 6.18” and these numbers were circled
To the right hand side of the envelope the date “January 2015” was found and below that the word “Alterations” which was underlined.
This is then followed by the words “brother Pat’s 4” which are circled followed by the words “to STEPHEN (nephew)” and then, just below this, are the words “nephew Patrick’s 4” which are also circled and followed by the words “to PAUL (nephew)”.
Then, below this, the words “Signed” has been written and then Miss Downey’s signature has been written and the date “January 2015” to the right of the signature.
To the right-hand side of this, the words “brother Pat’s 4” are circled and after this, the words “to STEPHEN (nephew)” are found and just underneath this are the words “nephew Patrick’s 4” are circled and followed by the words “to PAUL (nephew)”.
Finally, below these words, Miss Downey’s signature has been applied with the word “Signed” to the left of it and “January 2015” is repeated to the right of the signature.
What did the writing on the envelope mean?
This goes to the crux of the problem that the sheriff had to address. Even the executors who petitioned the court about giving effect to the informal writings admitted that the writings were “not clear”. The executors, however, argued that the writing on the envelope contained sufficient testamentary intent by Miss Downey which would have the effect of changing the content of her Will.
To understand their argument that there was testamentary intent, there has to be clear evidence that the person who wrote the words intended that they have testamentary effect. In other words, that the words written were meant to change the content of the Will.
Some Wills contain a clause allowing effect to be given to informal writings by the testator (the person making the Will). This Will did not contain such a clause. However, that does not prevent informal writings containing testamentary intent from being taken into account.
It seems the words were written by Miss Downey and signed by her and that meant that they complied with the Requirements of Writing (Scotland) Act 1995. However, that still left the question as to whether the works amounted to testamentary intent.
What was the outcome of this case?
The case failed and the words written on the envelope were not taken into account when interpreting the Will. The sheriff said “The intention of the writer of the Informal Writing is not clear from the words used. There is, to use contractual language, no operative clause, which clearly and succinctly informs the reader what the writer’s intention is and what is to be done (unless one assumes testamentary intent when it is obvious what the Informal Writing means). Put another way, testamentary language is not used.”
In summing up, the sheriff said “There’s the rub, to my mind. The evidence from what’s written, where it’s written and where it’s found individually and collectively fail to persuade me on a balance of probabilities that the deceased intended to alter her 2012 will which is a clear and probative testamentary writing.”
We have summarised the judgement in this article. If you would like to read the full judgement, please click here.
What should you do if you want to make changes to your Will?
As you can see from this case, you must take very great care if you want to change your Will. If you want to make any changes to your Will or, if you do not already have a Will and would like to make one, please contact us without delay.
© Brian O’Neill May 2022
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