Can you challenge a Will in Scotland?
If someone has prepared a Will, it will generally set out who their executors are to be and how their estate is to be distributed. However, it doesn’t always reflect what family members or friends expect, and you may have concerns about whether it truly is what they wanted, at this stage you may consider contesting a Will.
It can be possible to challenge a Will in certain circumstances and have it declared invalid. However, you must establish a recognised ground for contesting. If that happens, the Will is treated as if it never existed. This would mean a previous Will would apply instead or, if no other Will exists, the laws of intestacy in Scotland.
Just because you might inherit more under a previous Will or under intestacy, that is not enough to challenge a Will.
What are not grounds for challenging a Will in Scotland?
You can’t challenge a Will where you:
• have been cut out of the Will or are unhappy with the amount left to you, or
• are upset at someone else benefiting from the estate, or
• have been financially dependent on the deceased and have concerns about the provisions left to you.
Although if you are a child, spouse, civil partner or grandchild of the deceased you might be entitled to legal rights.
What are the grounds for challenging a Will in Scotland?
The main grounds for challenging a Will are:
• Incapacity or lack of testamentary capacity – i.e. would your loved one have had the necessary mental capacity to fully understand the terms of their Will?
• Undue influence – where someone else has influenced the terms of the Will
• Facility & circumvention – where someone was in a vulnerable position, which was exploited
• Fraud or forgery – the signature itself is not that of your friend/relative
Questions may also arise about whether the deceased had sufficient knowledge and approval of the contents of the Will. A perceived lack of knowledge may form part of the evidence relevant to one or more of the recognised grounds above. It’s important to note you don’t need to pick one ground, you can proceed with multiple grounds if appropriate to do so.
There are some other grounds that are not as common to see, including “forfeiture” where a person was in some way responsible for the death and ought not to benefit, and where a Will makes no provision for children and the person has subsequently had or adopted a child.
Before embarking on any challenge, it is worth understanding the difficulties. There is a high bar of evidence required to persuade a Court that a Will ought to be set aside. These challenges and any resulting court proceedings can be costly, time consuming and can make what is already a difficult time worse.
How our Will dispute solicitors can help
Who can challenge a Will in Scotland?
To be able to contest or challenge a Will, you first have to show that you would benefit more under a previous Will or under intestacy to show you have legitimate “interest” in raising a challenge. This can be difficult if you don’t know whether a previous Will existed or not. The first step in helping you can often be liaising with the other side to ascertain if an earlier Will exists and trying to get it (or its terms) released. Where this is not forthcoming, a court application may be required to seek the release of files. We are on hand to help with this process.
What are the first steps in challenging a Will?
Before challenging a Will, there might also be some initial steps we recommend that are taken to protect your interests. There is a risk that if executors get wind you plan to challenge a Will that they will try to distribute all of the assets from the estate before your challenge can be raised. In practice, it’s unlikely executors will be able to do so quickly, and they can’t take such actions if they don’t yet have confirmation (Scottish equivalent of Probate). We often recommend lodging a Caveat with the Court to flag if the executors apply for confirmation, or, if the executors already have confirmation and there are genuine concerns that assets might be distributed it could be possible to put some form of block on this. The team can discuss these preliminary protections with you.
Who should defend challenges to a Will in Scotland?
If you are a beneficiary under a Will and someone else is seeking to challenge it, which will reduce or completely revoke your entitlement then you will likely want to defend any challenge to protect your inheritance. Our will disputes solicitors can help you in defending these actions.
Ordinarily executors shouldn’t defend such challenges. This is because they have an administrative role in distributing the estate and don’t have a personal interest in what happens if a challenge is raised. If an executor defends a challenge without good reason, they might risk facing some liability later. There may be times where executors do have a role in these matters so advice should be sought as it is a careful balancing act.
Gathering evidence to pursue or defend a claim
The burden to gather evidence is on the person seeking to challenge a Will. You need to have sufficient evidence to persuade other parties or the Court to consider your claim. However, if defending an action you likely want to consider and gather your own evidence to counter any such claims.
Our team will be on hand to guide you through what will be needed. For example, for an incapacity case it will often include obtaining full medical records to consider whether they would have known and understood what they were doing when a Will was prepared and signed. It may also include getting expert medical evidence or affidavits from friends, family and those who knew the deceased best, and reviewing diary entries, letters or other communications from the deceased.
Depending on the particular challenge, it might involve forensic document analysis or other expert evidence.
How will a challenge be resolved in practice?
A court action can be raised for a court to make a formal decision on whether a Will ought to be made invalid or not. Where the best route involves the court proceedings, our lawyers understand the importance of guiding clients through the process step by step and ensuring that everything is thoroughly prepared. We have extensive experience in the Sheriff Court, Supreme Court, Court of Session, as well as before numerous Tribunals and Inquiries.
However, court is not the only way to resolve these challenges. There is often a negotiation between the parties who would be affected by a challenge to a Will to agree an alternate distribution of the estate to what is set out in the Will. It may be that mediation is suggested to try to resolve matters in a more cost effective and amicable matter rather than proceeding to Court where someone will inevitably lose out. Our team can discuss these options with you, and the risks of proceeding to court as matters progress.
Why choose Anderson Strathern’s Will dispute solicitors?
Our solicitors have a wealth of combined experience and expertise when it comes to advising on these difficult challenges and to helping people through the process whilst grieving.
Our specialist team is ranked tier 1 in the Legal 500 for Contentious Trust & Probate work and includes partners Scott Flannigan who won the Legal 500 Dispute Resolution Rising Star of the Year, 2023 and SJ Macdonald who is ranked as a Leading Individual in Private Wealth Disputes in Chambers & Partners.
Our expert team has various professional memberships, demonstrating their expertise, including the Society of Trust and Estate Practitioners (STEP), STEP Advanced Certificate in Trust Disputes, and law society accreditations.
Our expertise with will and trust disputes also extends to advising beneficiaries on removal of executors and other problems with executors/trustees, legal rights issues, varying trust powers, purposes of trustees, dealing with the validity of homemade wills, and other similar problems. To find out more about our wider wills and trust disputes services, please click here.
Speak to our Will disputes solicitors today
To discuss the process of challenging a will with a member of our expert team, please get in touch today.
Contact us on 0131 270 7700, visit our offices in Edinburgh, Glasgow, East Lothian, Shetland or Orkney, or fill in our enquiry form to request a call back.