Testamentary Formalities in Scotland

Abstract

There are no separate rules of testamentary formality in Scotland, and wills are solemnised in the same way as other juridical deeds for which writing is required. The reason is historical. Until 1868 it was not possible to make a will in respect of immoveable property, and heirs could only be disinherited by a deed which had at least the appearance of an inter vivos conveyance. In practice such conveyances tended to be used for moveable property as well although a will was competent. The result was that wills were little used until the second half of the nineteenth century, by which time it was too late to develop distinctive rules of execution. This paper examines the history of testamentary formalities in Scotland, considers the influences, internal and external, on the development of the law, and evaluates the role played by legal policy.

Keywords: Legal History, Scottish Law, Wills, Deeds, Authentication, Formalism