Challenging wills in Scotland

Challenging a will can be a sensitive and complex process. This article looks at the tests and procedures in Scotland, where the applicable law is different to the rest of the UK.

Disputes can arise for many reasons. Perhaps the will was poorly drafted, and does not definitively state what should happen in the relevant circumstances. Sometimes a family member has not been provided for, and wishes to change that. People may believe that the will is not legally valid, or that it does not properly reflect the deceased’s intentions. Whatever the root cause of the dispute, practical issues will also need to be considered, such as timescales for challenge and the need to preserve evidence.

For all these reasons, it is particularly important to take specialist advice at an early stage.

Grounds to challenge a will

There are five main grounds on which a will can be challenged, outlined below. The first three are the most common.

Incapacity

A will is not valid if the deceased did not have the legal capacity to sign it: they must have been capable of understanding the nature and consequences of what they were signing. Practical issues can arise around the quality of contemporaneous records, and it can also be hard to definitely determine the surrounding circumstances at the time of signing.

Facility and circumvention

A person may experience mental decline which, while not amounting to incapacity, can make them more vulnerable to pressure from others. Facility and circumvention may arise where someone else takes advantage of that vulnerability.

Undue influence

Undue influence can occur if someone acting in a position of trust takes advantage of their position to secure a benefit under the will. This might be, for example, a solicitor, accountant, doctor, religious leader or carer. To succeed in such a claim, you must prove that coercion took place to ensure that the will was prepared in a particular way.

Undue influence is distinct from facility and circumvention, but there are some similarities and it is common to challenge a will on both grounds. Whether a challenge is based on one ground or both, proving the allegation can be difficult: it will typically require a detailed assessment of the relationship dynamics and the relevant chronology.

Lack of formal validity

A will may be challenged on the grounds that it does not fulfil all the necessary criteria, for example being properly signed or witnessed. This is still relatively unusual, although such claims look likely to increase in future due to the rise of homemade or ‘DIY’ wills, and of generative AI tools.

Fraud

If a will has been prepared fraudulently or has been forged, it may be challenged. The person bringing the challenge bears the burden of proof, which has been described as a “heavy one”. In the case of allegations of forgery, handwriting analysis is likely to be needed.

Court action

In Scotland, a challenge to a will can be brought in the Sheriff Court or Court of Session. The appropriate forum will depend on the circumstances (we can advise on this). Evidence is presented to the court, including the deceased’s medical records if required. If the challenge is successful, the will can be set aside, technically referred to as ‘reduction’.

Legal rights

Claiming legal rights can be an alternative to contesting a will.

Put simply, Scots law does not allow you to ‘disinherit‘ your spouse or children. More specifically, when a person dies who was domiciled in Scotland, their children, spouse or civil partner have legal rights to a fixed share of the person’s moveable estate (i.e. everything except land and heritable property). The exact shares that people are entitled to depends on the precise circumstances.

These rights apply regardless of the terms of a will, so even if it does some make provision for a spouse, civil partner or children, they must decide whether to accept that bequest or claim their legal rights. These rights are automatic, although they can be ‘discharged’ – that is, voluntarily given up – both before and after the testator’s death. Executors have a duty to advise everybody who may have legal rights.

Disputes relating to legal rights are increasing. Although the entitlement is fixed in principle, questions can arise in practice around several issues. The classification and valuation of moveable assets which make up the legal rights ‘pot’. Whether transfers made in lifetime are gifts or loans. Whether anyone has already discharged their rights. Locating all of those who have a claim (such as children born outside of the marriage, for example). And tax implications, particularly in larger or more complex estates.

Caveats against Confirmation

If you are considering challenging a will, it might well be advisable to lodge a ‘Caveat against Confirmation’, because you will then be notified if an executor applies for confirmation to the deceased’s estate. Confirmation, when granted, is the executor’s authority to manage and distribute the estate, access funds, and sell and distribute assets. If you are considering a challenge to a will, objecting to confirmation being granted may allow the dispute to be heard, and potentially resolved, at an early stage.

Early advice is crucial

No two estates are the same, and the success or failure of any challenge to a will depends greatly on the particular facts that apply. The correct dispute resolution strategy is also critical: are court proceedings necessary and, if so, which is the appropriate forum for litigation? Or is mediation more suitable? And early interrogation of the evidence is also important: it can help you to make better decisions, leading to a quicker and more satisfactory resolution.

Do you have concerns about the validity of a will, your entitlement from an estate, or the steps being taken by executors? If so, taking advice at an early stage can help to protect your position, and to identify the most appropriate route to resolution.

For more information please contact our Private Wealth Disputes team.

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