The Team

Don’t make changes to your Will on the back of an envelope!
Don’t make changes to your Will on the back of an envelope!

In a recent case in the Commissary Court, the executors to the Will failed to have informal writing included in the Will. And where was this informal writing? As the title suggests, written on the back of the envelope containing a copy of the deceased’s Will.

The background to the case is this. Miss Mary Downey (known as Maureen) was born in the Republic of Ireland in 1926. She came to live in Scotland when she was an adult and qualified as a schoolteacher and spent her time teaching in Glasgow. She resided in Glasgow from her early adulthood until 2017 when she moved to a nursing Home in Cashel, County Tipperary, Ireland. She had wanted to be closer to her family as she approached the later stages of her life. Miss Downey died in Cashel on 14 September 2019. She was 93 years old at the time of her death.

In December 2012, Miss Downey had made a Will. This was prepared by and witnessed by her solicitor. On review of the Will, the Sheriff confirmed it was a “valid and probative document under Scots law”. That meant the Will could be relied on and that the executors would have to follow the instructions contained in the Will.

An envelope containing a copy of Miss Downey’s Will was found in her possessions following her death. On the back of the envelope, Miss Downey had written some words under a heading which read “January 2015”. She signed the envelope at the bottom of the words she had written. The words written were interpreted as disinheriting Mr Patrick Downey Jnr, her nephew, and the other disinherits his father (Miss Downey’s brother), Mr Patrick Downey Snr who was then deceased. The executors claimed that the words showed testamentary intent and should be treated as a Codicil to the Will.

Sometimes a Will may contain a clause indicating that the executors should give effect to informal writings made by the person who made the Will. This will did not contain this provision. However, there is settled law which allows informal writings which indicate clear testamentary intent to be incorporated into the Will or treated as a Codicil.

The sheriff gave a great deal of consideration to all the facts and circumstances of the case and listened to the legal arguments presented on the executors’ behalf. In his decision, he indicated that “there is a persuasive burden of proof on a party seeking to prove alteration to such a testamentary deed” (when referring to the Will). He also concluded that from the words used “the intention of the writer of the Informal Writing is not clear from the words used” and “testamentary language is not used”.

He reached the conclusion “the evidence from what’s written, where it’s written and where it’s found individually and collectively fail to persuade me on a balance of probabilities that the deceased intended to alter her 2012 will which is a clear and probative testamentary writing.”

Accordingly, the executors failed in their attempts to have the informal writings included as an amendment to the Will.

The sheriff has gone into great detail in his judgement to support the decision he reached. If you would like to read the judgement to find out more about the case and the reasons the Sheriff reached the conclusion he did, please click here.


The case details are: Application under the Requirements of Writing (Scotland) Act 1995 and for confirmation by Christina Cummins and Bridget Tierney, executrices of the late Mary Downey [2021] SC EDIN 60