Disputing a will in Scotland: Consider all your options

This article was first published in The Herald.

Disputes over wills have become much more common in recent years. There are various reasons for this, including more valuable and complex estates, and an increase in ‘blended families’ that include children from different relationships. The positive news is that, with early advice, families can understand their options and choose an approach that fits their circumstances.

If someone is unhappy with the effect of a will, they might wish to challenge it. There are five main grounds on which to do this in Scotland, of which three are more 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 an assessment of the surrounding circumstances at the time of signing can help build a clearer picture of the deceased’s capacity.

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 a solicitor, accountant, doctor, religious leader or carer, for example – but undue influence can also arise in a familial relationship. To succeed in such a claim, you must prove that coercion took place to ensure that the will was prepared in a particular way. This often requires a detailed assessment of the relationship dynamics and the relevant chronology. Undue influence is distinct from facility and circumvention, but there are some similarities, and sometimes a will is challenged on both grounds.

The rarer two are ‘lack of formal validity’ (for example if the will has not been properly signed or witnessed) and fraud, with the latter being relevant where it is alleged a will has been forged.

Whatever route (or routes) you decide to explore, doing so early is key. This allows you to take account of factors such as the time-limits within which a challenge can be made, and what evidence exists or can be found.

Perhaps the most important consideration, though, is the potential long-term effect on your relationships with the other parties. The amount of time it takes to resolve the dispute, and the approach adopted, can make a real difference here. The good news is that there are various ways to find a solution, all with different advantages and drawbacks. But it is vital to fully explore all your options early and then pick the right strategy. I’ll look at all of that in the final article of the series next week.

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