The death of a loved one is a difficult time and situations in which a Will is contested can be an additional burden. Challenging or contesting a Will in Scotland is slightly different from the rest of the UK and this guide is designed to set out the main grounds of challenge to a Will on both sides of the border.
Disputes can arise because of a poorly drafted Will, where there is a disappointed beneficiary or where a loved one appears to have been “disinherited”. Concerns may also be raised about the validity of a Will, or whether the deceased’s intentions are properly reflected in the Will.
Grounds to challenge a Will – Scotland
Lack of formal validity
A Will may be challenged on the grounds it is invalid because it does not fulfil the necessary criteria to be valid, for example if the Will was not properly signed.
A Will is not valid if the deceased lacked the requisite capacity when it was signed. A testator must be capable of understanding the nature and consequences of what they are signing.
Facility and circumvention
Someone may suffer a degree of mental deterioration which, without amounting to incapacity, may leave them easily imposed on by others. Facility and circumvention may occur if someone takes advantage of this. Three requirements are necessary: (i) the testator had a weakened mental state (facility); (ii) someone has taken advantage of this to their benefit (circumvention); and (iii) the person challenging the Will has suffered a loss as a result.
Undue influence can occur if someone acting in a position of trust takes advantage of their positon to secure a benefit under the Will. This may be for example: a solicitor, accountant, doctor, religious leader or carer. Undue influence may exist on its own or it may co-exist with facility and circumvention. Coercion must be shown to prove that, without the undue influence, the Will was prepared in a particular way.
If a Will has been prepared fraudulently or has been forged, it may be challenged. You must be able to prove that the testator was deceived into acting in a way they would not otherwise have acted.
In Scotland, court action needs to be raised in the Sheriff Court or Court of Session to formally challenge the Will and have it overturned (called reduction of a Will). Evidence is presented to the court, including the deceased’s medical records if appropriate, and the court assesses the evidence and decides whether the Will should be overturned.
Contesting a Will in Scotland raises certain issues regarding entitlement that are unique to Scots law. A possible alternative to contesting a Will is to make a claim for what is known as ‘Legal Rights’. Regardless of the terms of a Will, the children, spouse or civil partner of a person who dies domiciled in Scotland are entitled to ‘Legal Rights’. Legal Rights are a fixed share of a person’s moveable estate (i.e. everything except land and heritable property). These rights are automatic (although they can be discharged both during life and after death) and the executors have a duty to advise those entitled to Legal Rights of their entitlement to the estate.
Where an individual dies with a Will and is survived by a spouse or civil partner:
- the children (or grandchildren by representation) are entitled to one-third of the net moveable estate between or among them; and
- the spouse or civil partner is entitled to one-third of the net moveable estate.
Where an individual dies with a Will and is not survived by a spouse or civil partner:
- the children (or grandchildren by representation) are entitled to one half of the net moveable estate between or among them.
Where an individual dies with a Will and is not survived by children:
- the spouse or civil partner is entitled to one half of the net moveable estate.
If provision is made for a spouse or children in the Will, they must elect whether to claim their Legal Rights or accept their bequest in terms of the Will.
Contesting a Will – England & Wales
There are certain circumstances in which a challenge can be brought where an executor is seeking to prove a Will in England & Wales.
Want of due execution
This would apply in situations where a Will has not been signed in the correct manner.
This would apply where an individual lacked capacity to sign a Will at the time it was made. To be considered as capable, a testator must be aware of:
- what they are doing (i.e. that they intend to make a Will);
- the extent of their property being disposed of by the Will; and
- the claims to which they ought to give effect.
Undue influence refers to situations in which an otherwise valid Will was only executed as a result of pressure or influence from another which affected the testator’s own discretion and judgement.
For example, where false representations are put forward to an individual causing them to alter provisions made for them in a Will.
Entering a caveat
Where it is suspected that any of the grounds above exist to enable a challenge to a Will, an interested party may enter a caveat at the Probate Registry. This is a written notice which prevents the Probate Registry from issuing a Grant of Probate to any applicant without the caveator (the person entering the caveat) being made aware of this. The Probate Registry will also not issue a Grant until the caveat is removed.
Making a claim under the Inheritance (Provision for Family and Dependents) Act 1975
Where an individual considers that they have not been adequately provided for in terms of a Will, in some circumstances they can make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 (the “Act”).
A claim must be made within six months of the date of the Grant of Probate.
Only certain classes of persons are entitled to make a claim under the Act. These are:
- the deceased’s spouse or civil partner;
- a former spouse who has not remarried;
- a cohabitant (having resided with the deceased in the immediate two-year period before their death);
- a child of the deceased or a person treated as such; and
- a dependant.
A claim will likely be successful under the Act if, in all the circumstances of the case, the Will failed to make reasonable financial provision for the claimant. To determine this, the court will:
- make an objective assessment of the financial provision made for the claimant under the Will; and
- following this assessment, consider if the resulting provision, or lack of it, was unreasonable in all the circumstances.
The court will then likely assess what is reasonable in the circumstances. The standard of provision (i.e. what amounts to reasonable financial provision) depends on who is making an application. There are different standards for spouses and civil partners compared to other categories of claimant. For claims by spouses and civil partners, the court is to take into account the likely provision which would have been made for them in the event of divorce. Other successful claimants would be entitled to the ‘maintenance standard’, which is usually less generous.
Such claims are determined on a case-by-case basis and a full analysis of the prevailing circumstances would be required in order to assess the likelihood of success of any potential claim.
Case study – Scotland
In a recent instruction, we were seeking to establish that a signature on a Will had been forged. There was also a question mark about the testator’s capacity and whether any facility and circumvention had taken place.
An individual signed a Will in 2014 but a new Will appeared to have been signed two weeks before they died in 2018. The two Wills were in considerably different terms. Two favourable handwriting analysis expert reports were obtained in relation to the forgery of the signature on the new (latter) Will, and a challenge to the executor’s application for confirmation under the new Will was made on this basis. Following a hearing confirmation was refused and the executor was ordained to lodge a writ seeking warrant for confirmation, which they subsequently did.
Careful thought had to be given to the merits of proceeding with a challenge based on fraud rather than one based on capacity and/or facility and circumvention. Following lengthy negotiations, we achieved a settlement favourable to our client without needing to formally reduce the Will.
Our contentious executry, trusts and probate team is one of the largest currently operating in Scotland. We have extensive experience in contesting Wills on all of the grounds listed above, both north and south of the border.
Praise for our team:
“The firm has an excellent crossover between litigation and private client solicitors. Accordingly, there is technical expertise and tactical expertise. This sets the team apart.”
Elaine Brailsford, who heads up the team, “is a partner of renown, with comprehensive knowledge and skills in litigation”.
For more information, please contact Stephanie Hepburn, Senior Associate in our litigation and dispute resolution team, at email@example.com, or Emma Read, a solicitor in our private client team, at firstname.lastname@example.org.