Holograph

Holograph Writing

A writing, which is wholly in the handwriting of and is subscribed by the granter, is holograph. A holograph writing is privileged because the granter does not require to have his or her signature witnessed at common law. The most common form of a holograph deed is a home made will. It is still acceptable for a holograph will to be registered in the Books of Council of Session.

However, the onus of proving a holograph writ to be genuine lies on the party founding on it, and not on any party challenging its authenticity. If the person founding on the holograph deed can persuade the court that the writing is that of the granter, then it is afforded the status and protection of a self-evidencing deed.

If two witnesses sign the deed as required under the law pre 1995, then any challenger must prove the deed is not self-evidencing, even though it appears to be.

Useful links

Deeds Registered in the Books of Council & Session

Wills - Additional Guidance

Requirements of Writing (Scotland) Act 1995 (external link)

The Requirements of Writing (Scotland) Act 1995 disapplies the requirement for testamentary documents to be self-proving in section 6(3)(c)(i). Therefore we can accept wills if not witnessed. The basic registration requirement therefore becomes subscription by the granter.

For a holograph will executed prior to the 1995 Act coming into force on 1 August 1995, we can request affidavits xxxxxxxxx as per the practice in the manual but we will register if the agent does not wish to provide affidavits.

For a holograph will was executed on or after 1 August 1995, we can accept it whether it is self-proving or not. The key requirement is that it must have been subscribed by the granter, and no additional evidence needs to be sought in relation to the granter’s handwriting and subscription in affidavits.

Adopted as Holograph

Prior to the 1995 Act, if the words ‘adopted as holograph’ were hand written by the granter and then the granter signed the deed, the deed was deemed at that point to be wholly holograph. This means that a non-probative deed could be given the status of probativity by being adopted in another probative writing. Solicitors used this procedure for missives of sale and letters of obligation.

Since the 1995 Act, the benefit of ‘adopted as holograph’ has been extinguished. However, as the Act is not retrospective, deeds executed before 1 August 1995 in this manner are unaffected. The continued use of the phrase does no harm, but equally brings no benefit to the writing. Effectively, no difference is made between typed or handwritten documents.

Prior to the 1995 Act, a writing merely subscribed by the granter was not valid unless it was holograph or adopted as holograph.