subscription
Foley v Costello (1904) 6 F 365, 369–70 (Lord Trayner)
Significance: Lord Trayner talks a lot about subscription, which is vital in the Scots law of wills. This vitality comes from this case. When you sign your will, this is evidence that this is your concluded testamentary intention. Signature on its own is not sufficient, however it is necessary.
validity
ROWA s1(2)(c) must be in writing (piece of paper)
ROWA s2(1) must be subscribed
ROWA s7(1) subscribed means signed at the end of the last page
ROWA s7(2) signed = (1) full name, (2) surname plus forename/ initials or (3) other name, description, initial or mark AND usual method of signing, or intended it as signature.
probativity
ROWA s3(1)(a) bears to be subscribed
ROWA s3(1)(b) signed by a witness
ROWA s3(2) if more than one sheet it must be signed by the granter on each sheet.
subscription case
Draper v Thomason 1954 SC 136:
““By the way while speaking of dying! Should anything happen to me, (which it will one day) I haven’t made a Will, but everything I have is for Billy. Knowing that he will do the right thing.””
Letter to sister signed ‘Connie’: valid signature
Facts: The deceased had sent a letter to her sister, signing it “Connie”.
Legal issue: Was this a valid will? Was it subscription?
Held: Yes, it had been subscribed, Connie was at the bottom, and showed testamentary intention.
subscription not by name
Rhodes v Peterson 1972 SLT 98:
“Dearest Dorothy, I am so glad you are coming up for a break next month and it will be lovely to see you again. I have been thinking a lot about you recently and I am concerned about your future. Security especially as you have no home you can call your own…Now I feel better having at least got this down on paper. Do not lose this letter…Lots of love, Mum.”
Legal issue: Was “Lots of Love, Mum” subscription?
Held: Yes, and this also showed testamentary intention given that she said, “do not lose this letter”.
Significance: The courts can be pretty generous when it comes to testamentary intention.
subscription not at the bottom
McLay v Farrell 1950 SC 149
Legal issue: She had signed “Jane McLay” before saying “All to Anne McLay”.
Held: The court said that they would take the signature and say that it was a subscription. Anything coming before it is valid, but “All to Anne McLay” didn’t count having come after subscription.
Significance: perhaps because it was such a short will they were willing to do this, and because it was homemade. Would be interesting to see how this worked in other cases
adoption
Davidson v Convy 2003 SC 420—
Facts: Unsigned document inside an unsealed envelope which had the following written on it “My Will, Agnes Bessie Smith”.
Legal issue: Could the signing of the envelope operate as a valid subscription adopting the contents of the document inside the envelope.
Held: Yes, this is a valid adoption of what’s inside the envelope.
Significance: Some said that perhaps it would have been better if this was a sealed envelope, given that something could have been slipped in, but the court was okay with this in this case. The court showed a lot of understanding here.
what is a codicil?
A document that alters an existing testamentary document. The requirements for validity for a codicil are exactly the same as a will (subscription and testamentary intention)
codicil testamentary intent requirement
Downey’s Excrs [2021] SC Edin 60
Significance: Just because the piece of paper is signed isn’t enough, testamentary intent still needed.
successful codicil case
Carswell v Skelton [2025] SC Ham 54
Facts: Where a letter leaving a farm to the deceased’s son was found to constitute a testamentary writing by virtue of its subscription and concluded testamentary intention, and was treated as a codicil to be read alongside an earlier testament.
notarial execution
s9(1) of ROWA. sometimes a testator is mentally capably but physically unable to execute. someone else can sign on their behalf, in compliance with ROWA.
mistaken signature
Williamson v Williamson 1997 SC 94
Facts: Argued that there was a mistaken signature. The testator was called R Williamson.
Legal issue: The witness was called D Wilson, but signed as DCR Williamson. The witness had forgotten his own name, and added some initials. Could the court say that he knew what he meant?
Held: No, we’re drawing a line here.
Significance: You can’t have a mistaken signature. The fact that it was the same name as the testator made it worse.
requirements to prove the terms of a missing will
- the terms of the of the document or will must be capable of being demonstrated
- the execution of the document (i.e. its validity) must be capable of being shown
- the circumstances of the loss of the document
successful proof of the terms of a missing will
W v W 2022 SLT (Sh Ct) 64
Facts: Will held by solicitors, but during the move between one office and another, the will was lost, and it was never clear what happened to it.
Legal issue: Could the tenor be proven?
Held: Yes, because a copy of the will had been made. This case was more about step 3 (the circumstances of the loss). The solicitors had been able to successfully explain that their move was during covid, so a strange time, they don’t know exactly what happened, removals were difficult, etc. and the court accepted this.
There is a presumption of the law that if the will is known to have been in the possession of the deceased, and it cannot be found, the law presumes that the deceased destroyed the will. Even if someone sends a letter saying that they will send a will to someone, and fail to, the presumption is that they have destroyed it.
testamentary intention case
Jamieson’s Exrs 1982 SC 1:
I should like if the sum of money left to St Mary’s on the Rock was doubled - also that left to Mr David Alexander to be doubled. If the residue of my estate to be divided between my four cousins exceed 5000 pounds I should like that excess amount to be
divided between the two charities in my will. I do hope that this can be done. I have been having some pain of late and I just wanted to note this down. E R Jamieson 22.3.80.
Held: This was not concluded testamentary intention. This was a note to herself. An aide memoir even though she’d signed it. Subscription alone was not enough, you also have to show concluded testamentary intention. “I do hope that this can be done” suggested that it was notes for a discussion with her solicitor.
possibility of change once concluded testamentary intention
Barker’s Excrs v Scottish Rights of Way Society Ltd 1996 SLT 1319
Facts: A formal will executed in 1985 with solicitors, who kept it, and this revoked all previous wills. In 1991 (just before her death) she sent an old will (circa 1983) with a number of handwritten amendments and instructions to open another document with still further instructions to solicitor.
Held: The 1991 instructions were effective to pass residue of estate to designated charity.
Significance: The law doesn’t say that you can never change your will once you have concluded testamentary intention.
variation of a will
“…all is ambulatory during the defunct’s life, and may be taken away expressly or implicitly, by posterior or derogatory deeds, unless the defunct be obliged, by contract inter vivos, not to alter the same…” Stair, III. 8. 30
He’s saying that you can change the provisions of your will, expressly or impliedly, by later testamentary writings but you may be inhibited from doing that if you have created a legal obligation that you will leave something to someone.
presumption of destruction
Clyde v Clyde 1958 SC 343
Facts: Clyde had executed a will in 1936 leaving everything to the nephew, who was also his business partner. This will was left with his solicitors for about 12 years, until 1948, when the testator wrote to the solicitor asking them to send him his will. In 1955 George Clyde died, and when they went to look through his affects, there is no sign of the will.
There are two copies of the will, but they are not enough.
Legal issue: Implications of the missing will.
Held: If the will cannot be found we assume that it was destroyed by the testator if it was in the testator’s custody. Therefore the nephew was not entitled to inherit.
Significance: “The benevolence of the deceased towards the pursuer is insufficient to overcome the presumption that this deed, which was in the custody of the deceased and was not forthcoming at his death, was destroyed by him animo revocandi.” Lord Guthrie
revival of old wills
Succession (Scotland) Act 2016, s 5 NO REVIVAL
implied revocation
Duthie’s Trs v Taylor 1986 SLT 142
Facts: The deceased had left two wills, an earlier and a later. The earlier will contained a legacy in favour of some charities, and the later will didn’t say anything about the residue, so the court said that they could give effect to both wills.
Legal issue: There was another legacy that was inconsistent however; a legacy that Duthie had left to her housekeeper. The earlier will left her housekeeper a house to live in, but made it conditional upon her housekeeper remaining in her service. The later will had a legacy to the housekeeper of the same house but without this condition.
Held: Later will takes precedence over the earlier. It was ultimately an unconditional legacy.
testamentary presumption post-child(ren)
if someone has written a will and then they SUBSEQUENTLY have a child, the birth of that child can impliedly revoke the existing will. however, if you can lead evidence to show that the deceased deliberately didn’t leave their child anything in the will, then that’s fine.
subsequent child presumption rebuttal case
Stuart Gordon v Stuart Gordon (1899) 1 F 1005
Facts: The lady who had executed the will was pregnant while she executed it. There was also evidence led that she had thought very carefully about what she wanted to do in full knowledge that she was pregnant, and chose not to leave very much of the estate to the child. She died 3 days after the birth of the child.
Held: She had consciously decided not to make any change, and so the will stood.
Significance: Presumption rebutted.
presumption of subsequent children where a long period has passed since the birth of the child and the death of the testator
Milligan’s JF v Milligan 1910 SC 58
Facts: 10 years went by between the birth of the subsequent child and their attempt to challenge the testament.
Legal issue: They had a child for 10 years and didn’t change the will for 10 years.
Held: We can hear evidence about it, but the presumption is that it will be revoked, so you need to show that the testator did not want the child to inherit.
Significance: The passage of time is not enough on its own.
who can bring the action in relation to the presumption of subsequent children?
Stevenson’s Trs v Stevenson 1932 SC657
Facts: Other family members attempted to knock down the will, where the child who was born after it was very happy for the will to stand.
Significance: Only the child can bring the action.
