Pencils, Unsent Letters and the Importance of Making Your Will Properly
A thread of Scots law running from Dunoon in 1890 to Falkirk in 2025
Most law firms can point to an interesting case or two in their history. Few, however, can claim a direct personal connection to one of the leading authorities in Scottish succession law. Stewart & Bennett is one of them.
In 1890, the Court of Session decided the case of Munro's Executors v Munro (1890) 18 R 122. The case arose from the estate of William Munro, writer, notary public and banker in Dunoon — the very founder of the practice that would eventually become Stewart & Bennett. The legal question at its heart was whether pencil alterations made to a holograph Will could change its terms. The answer was no. One hundred and thirty-five years later, a sheriff in Falkirk was asked a related but distinct question: could an unsent letter found among a deceased's papers amount to a valid alteration of her Will? Again, the answer was no.
The two cases, separated by well over a century, tell a consistent story: in Scotland, if you want to change your Will, you must do so properly. Intention alone — however sincerely held — is not enough.
The Dunoon Case: Munro's Executors v Munro (1890)
William Munro made a holograph Will in February 1884. He was then a bachelor and left his whole estate, heritable and moveable, to his parents, and failing them to his nephew, Alexander John Munro Bennett. The following year he married, and children duly arrived. He died in September 1889, survived by his wife, three children and his parents, as well as by his nephew.
After his death, the Will was found in his repositories. He had clearly revisited it at some point after his marriage: the word "parents" had been scored out in pencil and "wife" written beneath it; "nephew" had similarly been deleted in pencil and replaced with "daughter." The alterations were in his handwriting. They had not been initialled or signed, and no date had been attached to them.
The Court of Session's Second Division, in a judgment delivered by the Lord Justice-Clerk, addressed two distinct questions.
The first was whether the original Will had survived at all. It had not. Under the Scottish doctrine known as the conditio si testator sine liberis decesserit (the condition that a Will lapses if the testator dies survived by children), Munro's marriage and the birth of children had rendered his original testamentary provisions inoperative. The Will as originally written could not stand.
The second question was whether the pencil alterations could constitute a new Will in themselves. On this, the Lord Justice-Clerk was characteristically direct:
"I am of opinion that it did not. Finding a document of this kind with part of it cancelled and filled in in pencil and part of it left standing, the only conclusion I think one can come to is, that Mr Munro, knowing the law, for he was a writer and notary-public as well as a banker, was using it as the draft of a new Will which he intended to make. He was going to alter his Will. It is hardly to be supposed that he intended this original Will, with the alterations on it, to be his last Will, but rather that he intended to use it as the draft of a Will giving new directions for the disposal of his affairs, and therefore I am of opinion that it did not constitute a new Will."
The pencil markings were, in the court's view, deliberative, the workings of a man thinking through a change he intended to make formally, rather than a concluded expression of testamentary intent. The estate accordingly passed on intestacy to his widow and children.
In a fitting postscript to the story, Alexander John Munro Bennett, who might have argued strenuously for his rights under the original Will, chose instead to take over the legal practice that had been his uncle's. The family received the estate. He received the business. That practice, at 82 Argyll Street, Dunoon, has operated continuously ever since.
The Falkirk Case: Boyd v Boyd [2025] SC FAL 102
More than a century later, and in a very different social setting, a Falkirk sheriff was asked to consider whether an unsent letter could change the terms of a Will.
The deceased, Isabel Boyd, had made a formal Will in 2002. She died in January 2023. After her death, her daughter Lois found a copy of a letter dated January 2009 among her mother's papers. The letter appeared to contain instructions to solicitors to alter the Will in a way that would have disinherited Lois's sister Lora entirely, the product, apparently, of an irretrievable breakdown in the mother-daughter relationship that had begun in 2006.
Lois raised proceedings arguing that the copy letter was a valid informal codicil to her mother's Will. Lora resisted.
Sheriff Shead's decision turned on several considerations, each of which will be familiar to Scots lawyers.
Was the letter sent at all?
The copy found in the deceased's papers was, on its face, addressed to a different firm of solicitors from the one that held her Will. Her own lawyers had no record of ever receiving it. Given that the deceased was, by all accounts, a meticulous woman, one who kept copies of correspondence and was assiduous in following matters through, the sheriff considered it far more likely that the letter had simply never been posted. The obvious inference was that she had changed her mind.
Was it a concluded testamentary document?
Even setting aside the question of delivery, the letter read as a letter of instruction to a solicitor rather than as a concluded expression of the deceased's own testamentary wishes. There is a long-standing distinction in Scots law between a document that constitutes a person's final will - their "concluded expression of settlement" - and a document that is merely a paper of instructions. The sheriff, following the well-established authority of Young's Trustees v Henderson 1925 SC 749, found that the letter fell firmly into the latter category. It contained nothing to suggest it was intended to serve as an interim Will or codicil.
Was the document formally complete?
The copy recovered was plainly not the whole document. It appeared to be the first page of at least a two-page letter, with a postscript appearing after what looked like a signature. The Requirements of Writing (Scotland) Act 1995 requires a testamentary document to be subscribed. That means being signed at the end of the last page. With a page missing, the court could not be satisfied that this requirement had been met.
What did the passage of time suggest?
Perhaps most tellingly, the sheriff observed that the letter had been written in 2009, some fourteen years before the deceased's death in 2023. In all that time she had made no formal change to her Will, had not told even the daughter who stood to benefit of any intention to alter it, and had left no other written evidence of a settled intention to disinherit Lora. A meticulous woman who truly intended a change would have pursued it. The more compelling inference was that she had not.
The court accordingly granted absolvitor in favour of the defender. The 2002 Will stands. Lora Boyd retains her entitlement under it.
A Consistent Principle Across the Centuries
The two cases are factually very different: one involves pencil annotations on an existing Will, the other an unsent letter found in a drawer, but the underlying legal principle is the same. Scots law requires that testamentary intention be expressed in a clear, formal and properly executed document. Workings, drafts, notes of intention and letters of instruction, however sincerely meant, do not meet that standard.
The point was put memorably in the 2021 Edinburgh case of Cummins and Tierney (Downey's Executrices), in which a signed note found on an envelope containing a copy Will failed to qualify as a valid codicil. Sheriff Welsh observed that the correct approach is to ask first whether the document demonstrates testamentary intent, not to assume from circumstances that a change was intended and then read the document accordingly. In his words, that approach would put "the 'Informal Writing' cart before the 'testamentary intent' horses."
In Munro, the court inferred from the pencil markings that the testator, himself a lawyer, was sketching the shape of a Will he intended to make, not making it. In Boyd, the sheriff inferred from fourteen years of inaction that the deceased had simply decided not to follow through. In both cases, the formal Will prevailed.
What This Means for You
The lessons from these cases are straightforward, even if following them requires a little effort.
Make your Will - and keep it current. If you do not have a Will, make one. If you have one, review it periodically. Life changes. Relationships end, new family members arrive, circumstances shift. Your Will should reflect your current intentions, not those you held when you last signed a document.
Change your Will formally. Pencil annotations, handwritten notes, letters to yourself or to your solicitor, emails, and verbal instructions to family members do not change your Will. The only reliable way to change the terms of your Will is to execute a formal codicil or a new Will, signed and, where applicable, witnessed in the proper manner.
Do not assume that intent is enough. The courts will look for clear, formal expression of your wishes. Circumstances and relationships that suggest you might have wanted to make a change, such as a family falling-out, a new grandchild, a change of heart about a beneficiary, will not, by themselves, give legal effect to an unexecuted document.
Destroy drafts you decide not to pursue. If you draft a letter of instruction or make a note about changes you are considering but ultimately decide against, it is sensible to destroy that draft. Documents found after death can generate disputes and legal costs, even where they ultimately have no legal effect.
Take professional advice. Scotland has its own succession law, including rules on legal rights that prevent the complete disinheritance of a spouse or children. A solicitor will ensure that any changes you make are not only formally valid but also achieve the outcome you actually intend.
William Munro knew the law. He was a writer and notary public. Yet when he came to alter his Will, he did so with a pencil and without the formalities required to give his alterations legal effect. One hundred and thirty-five years later, the sheriff in Falkirk reached a conclusion that Munro himself would have recognised: however clear your intentions, they must be properly expressed if they are to bind those who come after you.
If you would like to review, update or make a Will, we would be happy to assist. The process is straightforward when handled properly and, as these cases show, the consequences of leaving it informal can be anything but. Get in touch with us now and let’s get started.