Making a will in Scotland: the rules, legal rights and what is different

Who can make a will in Scotland?

Anyone aged 12 or over can make a will in Scotland, because section 2(2) of the Age of Legal Capacity (Scotland) Act 1991 gives testamentary capacity from that age, whereas in England and Wales section 7 of the Wills Act 1837 sets the minimum at 18. Age is only the first test, since you also need the mental capacity to understand what you are doing, and Citizens Advice Scotland adds that the will must be made freely, without pressure from anyone else. If you have homes or close family ties in more than one part of the UK, a Scottish solicitor can tell you which rules apply to each part of your estate before you sign.

How do you make a will in Scotland?

You put it in writing and sign it at the end, and strictly that is all Scots law requires for a will to be formally valid. The Requirements of Writing (Scotland) Act 1995 requires a written document for any will or codicil (section 1), makes a document valid once the granter subscribes it (section 2) and defines subscribing as signing at the end of the last page (section 7), so unlike England and Wales, where section 9 of the Wills Act 1837 requires two witnesses, a Scottish will does not need a witness to be valid.

A witness matters for a different reason, which is proof. Under section 3 of the 1995 Act, a will that bears your signature and the signature of one witness, with the witness's name and address stated, is presumed to have been signed by you, which is what makes it self-proving. For a will of more than one sheet the presumption only applies if you have also signed every sheet, and it can be overturned if it is shown that the witness was under 16, did not know who you were, or neither saw you sign nor heard you acknowledge your signature.

A will that is not self-proving can still be used, but someone first has to ask the sheriff court under section 4 of the Act, usually with affidavit evidence, to confirm that you signed it. Registers of Scotland will also only register a will in the Books of Council and Session if it is in self-proving form. Our guide to who can witness a will covers choosing a suitable witness in Scotland.

What are legal rights in Scotland?

Legal rights are fixed shares of your moveable estate that your spouse or civil partner and your children can claim whatever your will says. HMRC's Inheritance Tax Manual sets out the shares:

• If you leave a spouse or civil partner and children, your spouse or civil partner can claim one third of the moveable estate and the children can share another third.

• If you leave a spouse or civil partner but no children, they can claim one half.

• If you leave children but no spouse or civil partner, the children can share one half.

Heritable estate means land and buildings, whilst moveable estate is everything else, such as money, shares, cars, furniture and jewellery. Legal rights are worked out only on the moveable part, after debts and other charges, including inheritance tax, have been met. Under section 11 of the Succession (Scotland) Act 1964, where one of your children has died before you, that child's descendants can claim the share in their place. A cohabitant, however long you have lived together, has no legal rights at all.

Prior rights are a separate set of rules that apply only where there is no will, or where part of the estate is not covered by one, and they give a surviving spouse or civil partner first call on the home, its furnishings and a cash sum before legal rights are worked out. Our guide to dying without a will gives the current prior rights figures.

Can you disinherit a spouse or child in Scotland?

Not entirely, because a will takes effect subject to legal rights, so a spouse, civil partner or child you leave out can still claim their share of the moveable estate. What you can decide freely is who receives your land and buildings, since legal rights do not reach heritable property, so someone whose wealth is mostly in their home leaves much less within reach of legal rights than someone whose wealth is mostly in savings and investments.

The other half of the rule is that a claimant usually has to choose. Under section 13 of the Succession (Scotland) Act 1964, anything your will leaves to your spouse or a child is treated as being in full and final satisfaction of their legal rights unless the will says otherwise, so they can accept what the will gives them or give it up and claim legal rights instead, but not both. If your will leaves a spouse, civil partner or child less than their legal rights, a Scottish solicitor can explain how a claim would affect the other gifts in it.

Does marriage, divorce or a new child change a Scottish will?

Marriage does not revoke a will in Scotland, which is one of the clearest differences from England and Wales, where section 18 of the Wills Act 1837 cancels an existing will on marriage unless it was made with that marriage in mind. HMRC's manual confirms the Scottish position, and Citizens Advice Scotland still lists marrying or forming a civil partnership among the times to consider changing your will, because a will made beforehand may not provide for your new spouse as you would now want.

Divorce works differently. Under section 1 of the Succession (Scotland) Act 2016, where someone dies on or after 1 November 2016, a former spouse or civil partner is treated as having died before them for the purposes of the will, so gifts to them fail and their appointment as executor or trustee falls away, unless the will expressly says the gift or appointment should survive the divorce. The one exception is an appointment as guardian of your children, which the Act leaves in place.

A child born after you make your will can also affect it, because HMRC's manual explains that in Scotland a will which makes no provision for your children is presumed to be revoked if a child is later born. A will made before children arrive is therefore one to review once they do, and Citizens Advice Scotland points out that changes belong in a properly signed codicil or a new will, because unsigned alterations to the original are not valid.

What rights does a cohabitant have if you die in Scotland?

Very few, because a cohabitant has no legal rights and the only statutory claim depends on there being no will.

If you live with a partner in Scotland and one of you dies without a will, the survivor can apply to the court for provision from the estate under section 29 of the Family Law (Scotland) Act 2006, but at present the application must be made within six months of the death. Section 78 of the Trusts and Succession (Scotland) Act 2024 extends that period to 12 months from 14 December 2026, although neither the Act nor the commencement regulations say how the change applies to a death before that date. The claim only applies where the person who died was domiciled in Scotland and died intestate, and the court cannot award more than a spouse or civil partner would have received.

For a will-maker, the practical consequence is that a will is how you provide for a partner you are not married to, rather than leaving them to a court claim with a deadline and a cap. Our guide to cohabitation agreements covers the separate claim a cohabitant can make when a relationship ends, which has to be brought within one year of separating.

What changes on 14 December 2026?

Two sets of changes that matter to will-makers take effect on 14 December 2026 under the commencement regulations for the Trusts and Succession (Scotland) Act 2024 (SSI 2026/323). The first is the longer deadline for a cohabitant's claim described above. The second is that most of the Act's new trust rules come into force, covering the appointment and removal of trustees and the powers and duties they have.

The trust changes matter to you mainly if your will sets up a trust, for example to hold money for children until they reach a certain age. The Act's explanatory notes describe many of its provisions as default rules that give way to different arrangements in the trust deed, so it makes sense to ask whoever drafts or reviews such a will how the new defaults sit alongside it. The Act does not change the rules on signing and witnessing an individual's will, or legal rights.

What happens to your will after you die?

The executor you name in your will is the person who applies to the sheriff court for confirmation, the Scottish equivalent of probate, whereas without a will the Law Society of Scotland notes that an application to the sheriff court may be needed just to appoint one. Our guide to confirmation in Scotland explains how your executor will apply.

Your executor can only act on a will they can find. If a solicitor draws up your will, the Law Society of Scotland says they usually keep the original and give you a copy, and you can also register it for safekeeping in the Register of Deeds in the Books of Council and Session, which Registers of Scotland keeps. Registration is voluntary and costs £20, which covers registering the will and issuing an extract (an official copy that can be used in place of the original). Our guides to registering a will and where to keep your will compare the options.

Can you make a will in Scotland without a solicitor?

You can, because Scots law requires only that a will is in writing and signed, but the Law Society of Scotland and Citizens Advice Scotland both point to the risks of doing it yourself. The Law Society of Scotland warns that a DIY or internet will comes without personal advice, which is where the risk lies, and suggests asking a solicitor to look over even a will you have written yourself, whilst Citizens Advice Scotland lists the usual failings, including missing the formal requirements and overlooking legal rights, and notes that will-writing templates are not regulated by the Law Society of Scotland, so there are few safeguards if something goes wrong.

Advice tends to be most useful where legal rights are likely to be claimed, where you live with a partner you are not married to, where you own a business or property outside Scotland, or where inheritance tax may be due, which the Law Society of Scotland gives as an example of the more complicated affairs where a solicitor helps. Citizens Advice Scotland says legal aid is not usually available for making a will, although advice and assistance may be, and the Scottish Legal Aid Board can confirm whether you qualify.

What to do next if you are making a will in Scotland

1. List what you own, separating land and buildings from money, investments and belongings, because legal rights apply only to the second group.

2. Work out who could claim legal rights, which means a spouse or civil partner and children, or grandchildren in place of a child who has died, and whether your plans leave them less.

3. If you live with a partner you are not married to, decide what you want them to receive and put it in the will.

4. Choose an executor and tell them where the will is kept.

5. Sign the will at the end and on every page, in front of one witness aged 16 or over who knows who you are, and have the witness sign it and add their name and address.

6. Keep the original safe, consider registering it in the Books of Council and Session, and review it after marriage, divorce or the birth of a child.

Whoever acts as your executor will also have to find and tell every bank, utility, insurer and subscription you held, which is far quicker when you leave a clear list of your accounts alongside your will. If that work does fall to your family, Legacy Trail's free notification service can contact the private-sector companies for them.