How You Write Your Will Matters Just as Much as Writing One
If you have ever searched “how to write a will” or “how to make a will”, you will already have discovered that the internet is full of options – online templates, DIY kits, and automated Will writing services that promise a legally valid Will in under an hour for less than the cost of a meal out.
Some of those options may suit the most straightforward circumstances. But the problem is that most people do not know whether their circumstances are truly straightforward – and most online services are not qualified to tell them. The result is a Will that appears valid, but contains errors, gaps, or outdated provisions that only become apparent after your death, when nothing can be done about it.
At Jones Whyte, we have seen the consequences of poorly drafted Wills first-hand: contested estates, families left in financial hardship, wishes going unfulfilled. This guide exists to help you understand what a valid Will actually requires, what can go wrong, and why the process deserves more care than a quick online form.
We’ll walk you through what a Will is, the legal requirements for validity in Scotland, the seven key steps to making a Will, the very real risks of using unregulated online services, and how Jones Whyte can help you protect your estate properly.
What is a Will – and What Can it Actually Do?
A Will (sometimes referred to as a Last Will and Testament) is a legally binding document that sets out your instructions for what should happen to your estate after your death i.e., your money, property, and personal possessions. It also allows you to:
- Appoint guardians for your children if they are under 16
- Leave money or specific gifts to particular people or charities
- Set up trusts to protect assets for vulnerable beneficiaries or minor children
- Express wishes about your funeral and burial arrangements
- Minimise the amount of Inheritance Tax implications
- Protect assets from potential future care home fees or relationship breakdowns
Without a legally binding Will, your estate is distributed according to the strict rules of intestacy – which essentially means that the law decides who inherits with no regard to your personal wishes, relationships or financial intentions.
What Makes a Will Legally Valid? Scotland vs England & Wales Compared
The legal requirements for a valid Will, and the underlying rules that govern how someone’s estate is distributed, differ significantly between Scotland and England & Wales. These are separate legal systems, and a Will drafted under one jurisdiction’s rules will not automatically be valid or appropriate in the other. This distinction matters more than most people realise, particularly if your estate spans across both locations.
At Jones Whyte, our solicitors are dual-qualified, meaning we practise in both Scots law and the law of England & Wales. Whether you live in Scotland, have recently relocated from England, or hold assets across both jurisdictions, we can advise you with authority on what applies to your specific circumstances.
Scotland vs England & Wales: Key Differences at a Glance
The table below highlights the most important practical differences between the two jurisdictions that directly affect how your Will should be drafted.
| Issue | Scotland | England & Wales |
|---|---|---|
| Governing legislation | Requirements of Writing (Scotland) Act 1995; Succession (Scotland) Act 1964 | Wills Act 1837; Inheritance (Provision for Family and Dependants) Act 1975 |
| Number of witnesses required | One independent adult witness | Two independent adult witnesses, both present simultaneously |
| Children's automatic inheritance rights | Yes - Legitim entitles children to up to one-third of the net moveable estate | No automatic right, but children may make a court claim for reasonable financial provision |
| Surviving spouse/civil partner protection | Prior Rights take precedence over the Will in relation to the home, furniture, and a financial provision | No equivalent; surviving spouses have rights under intestacy rules but not Prior Rights as a concept |
| Effect of marriage on an existing Will | Marriage does not revoke a Will - but Legal Rights still apply | Marriage automatically revokes any existing Will - a new Will must be made |
| Testamentary age | 12 years old (Age of Legal Capacity (Scotland) Act 1991) | 18 years old (or 16 if on active military service) |
| Divorce and existing Wills | Divorce revokes gifts to a former spouse and their appointment as executor | Divorce revokes gifts and appointments to a former spouse, but the rest of the Will remains valid |
| Will storage / registration | Can be registered in the Books of Council and Session for safekeeping | Stored with solicitor or registered on the National Will Register (non-statutory) |
| Confirmation vs Probate | Confirmation - obtained from the Sheriff Court | Grant of Probate (or Letters of Administration if no Will) - obtained from the Probate Registry |
How to Make a Will: 7 Key Steps
Regardless of whether you work with a solicitor or consider another route, these are the fundamental steps involved in making a Will.
1. Take Stock of Your Estate
Before you can decide how to distribute your estate, you need to understand what it comprises. Make a full list of your assets – property (overseas & local), savings, investments, pensions, life insurance policies, business interests, and personal possessions of value – alongside your liabilities such as mortgages and debts.
2. Decide on Your Beneficiaries
Who do you want to automatically inherit your estate? Think carefully about all the people in your life – your spouse or civil partner, children, grandchildren, siblings, friends, and any charities you wish to support. You should also consider what happens if a beneficiary dies before you.
3. Choose Your Executor
Your executor is the person responsible for administering your estate and carrying out the instructions in your Will. This can be a family member, a close friend, or a professional (such as a solicitor). Choose someone you trust implicitly, who is organised and capable of dealing with legal and financial matters, potentially under emotional stress.
4. Consider Guardianship
If you have children under 16, your Will is the appropriate place to appoint a guardian – someone who would take parental responsibility for them in the event that both parents are no longer alive. This is one of the most important decisions you will make.
5. Think About Tax and Trusts
Depending on the size of your estate, Inheritance Tax may be a significant concern. Trusts can also be invaluable tools for protecting assets, providing for vulnerable beneficiaries, or ensuring children do not inherit large sums at 18. These are areas where professional legal and financial advice is essential.
6. Draft the Will
The actual drafting of your Will should use precise, unambiguous legal language. Vague wording, informal descriptions, or contradictory instructions can lead to disputes during the administration of your estate. A solicitor will ensure every clause is clear, legally sound, and reflects your true intentions.
7. Sign and Store Your Will Correctly
Your Will must be signed in the presence of a witness who also signs it. It should then be stored securely (ideally with your solicitor or registered with the Scottish Wills Register) and the location made known to your executor. An unsigned Will or one that cannot be found is effectively no Will at all. Jones Whyte provide free Will storage for all clients that write one with us.
When Should You Update Your Will?
A Will is not a legal document you write once and forget. Your life changes, and your Will must change with it. You should review your own Will whenever you experience things like:
- Marriage or civil partnership (which revokes a previous Will in certain circumstances)
- Divorce or separation
- The birth or adoption of a child or grandchild
- A significant change in your financial circumstances
- The death of a named beneficiary or executor
- Acquisiton of substantial new assets such as property abroad or a business
- Changes in your wishes regarding who should benefit from your estate
As a general rule, your Will should be reviewed at least every five years, or whenever a major life event occurs.
Unregulated Online Will Writing Services – is it Worth it?
Over the past decade, a significant number of online Will writing platforms have emerged, marketing themselves on speed, simplicity, and low cost. We are not dismissing all of them – but we do think it is essential that you understand what they typically cannot offer before you hand over your details and click “submit”.
⚠️ MOST ONLINE WILL SERVICES ARE NOT REGULATED PROVIDERS:
Will writing in the UK is not a regulated legal activity, meaning that, unlike solicitors, many companies that can write a Will online are not required to hold professional indemnity insurance, follow a code of conduct, or have their work reviewed by a qualified lawyer. If your Will is poorly drafted and causes problems after your death, your family may have very limited recourse.
The following table summarises the key differences between using an online service and instructing a qualified solicitor:
| Factor | Online Will Service | Solicitor (Jones Whyte) |
|---|---|---|
| Qualified legal review | Rarely - usually automated | Always - by a qualified solicitor |
| Inheritance tax planning | Not typically offered | Integrated advice available |
| Trust provisions | Limited or unavailable | Fully customisable |
| Errors and ambiguity | Common - no review process | Professionally proofed & reviewed |
| Professional indemnity insurance | Not always in place | Always in place |
| On-going advice and updates | Not offered | Available when your circumstances change |
| Will storage | Unlikely | Free strorage with Jones Whyte |
| Scottish law compliance | Often designed for English law only | Fully compliant with Scots law if needed |
| Accounts for legal rights | Often overlooked | Always considered |
Real Consequences of a Poorly Drafted Will
The issues caused by poorly drafted Wills are not abstract. Some of the most common outcomes include:
- Intestacy in disguise: A Will that fails formal validity requirements is treated as though no Will exists, meaning the intestacy rules apply regardless of your written wishes.
- Family disputes: Ambiguous or contradictory clauses create uncertainty that can drive costly, painful legal disputes between family members.
- Unintended beneficiaries: Without proper advice, assets can pass to people you did not intend to benefit - or fail to pass to those you did.
- Unnecessary tax: Without Inheritance Tax planning, your estate may pay far more than necessary to HMRC.
- Unprotected vulnerable beneficiaries: Without a trust, a beneficiary who has a disability or is on means-tested benefits may lose their entitlement to state support.
Online Will Writing Done Right
If you prefer the option of online Will writing vs in-person appointments, visit our online Will writing page and complete the questionnaire to start the process.
- 10-minute questionnaire
- All information gathered upfront
- Drafted by a qualified solicitor to ensure no details are left out
Beyond the Will: A Complete Estate Plan
A Will is a fundamental part of estate planning, but it rarely tells the whole story. A comprehensive estate plan typically includes:
Power of Attorney
A Continuing Power of Attorney (for financial and property matters) and a Welfare Power of Attorney (for health and personal decisions) give trusted individuals the authority to act on your behalf if you lose capacity. Without these documents in place, your family may have to apply to the courts to manage your affairs – a process that is costly, time-consuming, and deeply stressful.
Trust Planning
Trusts are one of the most flexible and powerful tools in estate planning. They can protect assets from being dissipated, reduce Inheritance Tax liabilities, provide for minor or vulnerable beneficiaries, and ensure your estate reaches the right people at the right time.
Inheritance Tax Planning
With the current nil-rate band frozen at £325,000 and more estates being drawn into the Inheritance Tax net each year, proactive tax planning has never been more important. Strategies range from maximising allowances and reliefs to lifetime giving and structured trust arrangements.
Get a Clear Picture of Your Estate Planning Costs
Our free Estate Planning Cost Calculator gives you a transparent, tailored estimate with no obligation.
Why Choose Jones Whyte for Your Will?
Jones Whyte is a full-service Scottish law firm with an experienced Private Client team dedicated to Will writing, Power of Attorney, trust planning, and Inheritance Tax advice. When you instruct us to write your Will, you benefit from:
- A qualified Scottish solicitor who reviews and drafts your Will personally
- Full compliance with Scots law including Prior Rights, Legal Rights, and the Requirements of Writing (Scotland) Act 1995
- A comprehensive review of your circumstances, not a checkbox questionnaire
- Clear, plain-English advice on every aspect of your estate plan
- Professional indemnity insurance - we are regulated by the Law Society of Scotland and the Solicitors Regulation Authority
- Secure storage of your Will free of charge and ongoing support when circumstances change
We believe that writing a Will should be a positive, empowering experience – not an anxiety-inducing chore. Our team works at your pace, answers every question, and ensures you leave the process confident that your wishes are protected.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
