Legal age to make a Will
In Scotland a person is able to make a Will from the age of 12 but they must also show that they are of sound mind in order to satisfy testamentary capacity.
In England and Wales, you must be 18 before you are able to make a Will.
Age of legal capacity
Legal capacity is different to testamentary Capacity. It is recognised before the law and enables a person to make decisions about their own life including entering into a contract and exercising their own legal rights and duties. The age of legal capacity in Scotland is 16. A Guardian would need to be appointed to assist in such matters where you have a child or children under 16.
It follows that children who have not yet reached 16 cannot make a decision on whether to claim or formally discharge Legal Rights either.
Appointing Executors
An Executor in a Scottish Will must be over the age of 16.
There is no limit on the number of Executors appointed in a Scottish Will.
In Scotland, if there is a surviving spouse or civil partner, they are automatically appointed as Executor of the estate. However, they can choose whether or not they wish to act in this capacity. If a surviving spouse or civil partner decides not to take the Executor appointment, someone else can be appointed instead.
If you make a Will while you're married but subsequently divorce, your ex-spouse or civil partner is considered to have died before you. Any substitute Executor appointment will take effect in these circumstances
Effect of marriage on a Will
Marriage does NOT invalidate a Scottish Will. So, if a Will is created and Executed before marriage, it will still be valid after the marriage. It is not even a requirement to state that the Will is being made in contemplation of marriage.
However, it is important to note that even if you have not provided for your spouse or civil partner in your Will, they will still be able to claim Legal Rights.
If you are divorced, but your ex spouse or civil partner is mentioned in the Will, they are treated in both England and Scotland as having died before you and as such would not be entitled to your estate.
If you did wish to make provision in some way for your ex-spouse or civil partner in your Will, you would need to expressly state this.