At Rollos, we often see how the loss of a loved one can be complicated by uncertainty surrounding their final wishes.
A recent case at Falkirk Sheriff Court, Boyd v Boyd, serves as a poignant reminder that even the most “meticulous” individuals can leave behind legal ambiguity if they do not follow formal procedures for updating a Will.
The Case: A Family Divided by a Found Letter
Following the death of Isabel Hughes in early 2023, a dispute arose between her two daughters.
One daughter (the pursuer) found a copy of a letter dated from 2009 among her mother’s possessions.
This letter appeared to be instructions to a solicitor to alter her mother’s 2002 Will—specifically, to remove the other daughter (the defender) as a beneficiary.
The pursuer argued that this letter should be treated as an “informal codicil” (a document that amends an existing Will).
However, the court was faced with a critical question: Did this letter represent a “settled intention” to change the Will, or was it simply a draft of instructions that the deceased ultimately decided not to send?
The Sheriff’s Ruling
Sheriff Christopher M. Shead ultimately ruled against the letter being a valid amendment to the Will.
Several key factors led to this decision:
- No Evidence of Sending: There was no proof the letter was ever sent to the solicitors. The original solicitors confirmed they had no record of it.
- The “Meticulous” Test: Both daughters agreed their mother was a meticulous woman. The Sheriff noted that if she were truly determined to change her Will, a meticulous person would have followed up and ensured the legal work was completed in the 14 years between writing the letter and her passing.
- Changing One’s Mind: The court concluded that it was more likely the deceased had written the letter during a period of upset but later changed her mind and chose not to act on it.
Why This Matters for You
This case highlights a common misconception: that a signed piece of paper found in a drawer is enough to change your legal estate.
In a similar case, our Tony Anderson was instructed in a case before Sheriff Johnston in Forfar Sheriff Court, SC v LM. The Sheriff held that the widow of a deceased, living with him at the time of death, was entitled to decide on the necessary funeral arrangements.
The deceased left a will nominating his mother and brother as executors, but no specific written intention or wish as to where he was to be cremated or buried. He was a serving soldier, and during conversation on leave had told his wife he wished to be buried alongside his brother in law. This decision was appealed by the executor as she thought he should be buried elsewhere, but the appeal was subsequently withdrawn.
The tragic upshot of the dispute was that the poor man’s body was left to languish in storage for more than three years before his final burial, not without acrimony and ill feeling at his graveside.
The absence of much-needed appellate court input leaves the law in Scotland sorely lacking and unclear. There is very little reported authority, although Sheriff Scott in Evans v McIntyre (Aberdeen Sheriff Court, 1980) provided guidance in contradiction to the presiding sheriff in this case:
“Although there is no direct authority on the matter, I apprehend that the law must have an answer to the question of who has the right to say how a dead body is to be disposed of in the event of a competition. The answer in my opinion is the person who has the right to decide is the executor.” Further recognition in Scotland of the special position of an executor was Lord Gill’s comments in Wills, Petitioners, albeit only reported in a case note in a 1996 Family Law Bulletin.
Sheriff Johnston’s rationale in my view was and is open to criticism, not least for perhaps attaching too much weight to the character and credibility of the particular executor over the executor’s actual role and status in law. As it is no longer being appealed, it leaves the law on who ranks wide open.
Notwithstanding the dearth of authority I found when preparing submissions, it struck me that perhaps the cure would have been for the deceased to have expressed his written intentions for his final resting place in his actual will. Most wills merely insert the generic “In the event of my death I wish to be buried/cremated.” That does not go far enough.
Three years on and the law is no clearer. Therefore chamber practitioners should perhaps take an informed instruction of a preferred resting place the client has settled on and insert it in the will. The executor, whether ranking or not, would be obliged to consider and implement the preference.
In Scotland, the Requirements of Writing (Scotland) Act 1995 sets high standards for what constitutes a valid testamentary document.
The risks of “informal” updates include:
- Costly Litigation: Disputes between siblings or family members can drain the estate’s value in legal fees.
- Emotional Strain: Legal battles during a time of grief can cause irreparable damage to family relationships.
- Unintended Outcomes: Your assets may end up being distributed according to an old Will that no longer reflects your current relationships or life circumstances.
How Rollos Can Help
Whether you are looking to create your first Will or need to update an existing one, the team at Rollos is here to ensure your wishes are legally watertight.
We provide expert guidance in:
- Drafting Wills: Ensuring they meet all statutory requirements.
- Dispute Resolution: Helping families navigate disagreements over an estate with sensitivity and professional insight.
- Executries: Assisting executors in the complex process of administering an estate.
Don’t leave your legacy to chance or a “found letter.” Instead, choose a properly drafted will to ensure your estate goes where you want it to.