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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11442
Experience:  30 years as a practising solicitor.
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Hi I applied for Grant of Confirmation as Executor Nominate.

Resolved Question:

Hi I applied for Grant of Confirmation as Executor Nominate. Forms were returned as my mothers 2 page Will was deemed not to comply with Scots Lawe (signed on 1 page only). I am now applying as Executor dative. The estate is to be shared by my sister and I, my mother was a widow. Will I require a bond of caution. The net effect of the estate is the same testate or intestate. Also do i mention the invalid will on the Condescendence part of the petition, thanks. AG
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
You cant apply to be executor dative as there is a will, even though It lacks formality of signing. The other issues about a dative estate are that:
1. you will require a bond of caution,
2. the estate would require to be wound up by a solicitor as the insurance company issuing the bond will insist on that.
The better way of proceeding is to apply to the court for a declarator that the will is the last will and testament notwithstanding the fact that it was not signed properly. Affidavit evidence can be lodged to confirm the circumstances of the signature and that the will reflects what was intended.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

Whose affidavit evidence is required - the witnesses to the will? I assumed the witnesses were witnessing the signature of the testator and not the contents of the will, am I incorrect? thanks

Expert:  JGM replied 2 years ago.
The witnesses to the signature, the person who prepared the will and anyone else who can confirm that the will contains the intention of the testator.
A witness wouldn't necessarily see the content of the will, no.
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