Can a handwritten note be treated as a Will?
A scenario we see quite often is after a person has died, their family will look through personal papers and belongings and come across a note written by the deceased. The note reads as if it is intended to amend an earlier Will or be a Will in its own right. It includes phrases like ‘I want my son to receive my house’ or ‘I want my daughter to receive my jewellery’.
From the family’s perspective a note can be helpful as it may set out what their loved one wanted to happen after their death. But it can also be alarming as it may not be clear whether the note can legally be treated as a Will or potentially change an earlier Will.
In such scenarios, it is common for parties to apply to have the court determine whether the handwritten note can have legal effect.
Each case is different
There are cases in Scotland where letters and diary entries have been treated as Wills and the person’s estate has been allowed to be distributed in accordance with them. However, each case is dependent on its own facts, and crucially the court will need to be satisfied that the deceased intended the note to be treated as a Will – not simply a reminder of a future intention. If the latter, the courts have found that the note is insufficient to constitute a Will. It is therefore by no means certain that a handwritten note will be treated as a Will.
In practice, these notes create a number of difficulties. There may be questions over whether the handwritten note is genuine. The wording of the note can also lead to different interpretations by different family members. Such difficulties often make matters complex and costly. It can also sadly create tension and upset between family, particularly where the note could lead to certain family members losing out on inheritance.
Key takeaways
While each case is complex in legal and relationship terms, there are a few key takeaways:
- If you do find a handwritten note after a loved one’s death, do not make assumptions as to whether it can or cannot be treated as a Will.
- Keep the handwritten note safe and pass it to a solicitor, we can help advise what options are open to you.
- To avoid this scenario altogether in terms of your own estate, if you want to change an earlier Will or put a Will in place, instruct a solicitor to assist you with this.
