Even in a straightforward estate, where the deceased’s will is accepted as an accurate reflection of his wishes, the death of a loved one will be a difficult time for those left behind.
However, matters can become even more upsetting if there are concerns that the will does not reflect the deceased’s intentions. For example, the deceased may have changed his will shortly before death to exclude close family members in favour of remoter relatives, friends or charity. A person excluded from the will (the ‘disappointed beneficiary’) may have concerns about the deceased’s state of mind when this change was made and consequently look to challenge the terms of the will and have them overturned.
Grounds for challenging a will
In Scotland, a will can only be challenged on the following grounds:
In order to make a valid will, the person making the will (the ‘testator’) must have testamentary capacity. Firstly, he must firstly be old enough. In Scotland, anyone over the age of 12 can make a will. Secondly, the testator must be of ‘sound mind’. Ultimately, it will be for the court to decide whether or not the testator had testamentary capacity. When assessing capacity, as well as assessing medical and other evidence, the court will also consider the following:
- Did the testator understand the significance of making the will and the effects of doing so?
- Did the testator appreciate and understand the extent of the property he owns that is being left in his will?
- Did the testator appreciate the nature and extent of obligations which he may have owed to people and the consequences of excluding them from his will?
If the testator was not capable of understanding these matters, this will lend support to the argument that the testator lacked testamentary capacity.
Facility and circumvention
If the testator had testamentary capacity, it may still be possible to overturn the will if facility and circumvention can be proved. Under this ground, the person challenging the will must demonstrate the following:
- Firstly, there must be facility on the part of the testator and this must have influenced the testator’s will instructions. That is, it must be shown that the testator was fragile or impressionable as a result of mental or bodily weakness, falling short of actual incapacity. For example, the facility could be caused by age, illness, bereavement or even alcohol.
- Secondly, there must be evidence of circumvention, or fraud by the person who has benefitted under the will. In short, it would be necessary to show, with evidence, that person/people benefiting under the will had taken advantage of the testator’s vulnerability and pressured him to leave his will in a way that benefits them.
- Finally, the person challenging the will must have suffered harm or loss as a result of the facility and circumvention i.e. by not being included in the testator’s will.
To successfully challenge a will on the ground of undue influence, you must demonstrate that someone acting in a position of trust and responsibility (e.g. a carer, doctor, parent, solicitor) exerted influence over the testator so that the will was prepared in a particular way (usually in the favour of the person exerting their influence). The question is whether the will was genuinely a free and voluntary act of the testator or whether the testator was coerced to make his will in a certain way.
It may also be possible to challenge a will if you can show that the testator was, as a result of deception, induced to act in a way that he would not otherwise have acted.
Brodies have significant expertise and experience in this area and we are exceptionally well placed to advise executors, beneficiaries and those with a potential claim on all aspects of challenging a will. As a full service law firm with top rated solicitors in our Personal and Family and Litigation departments, we can deliver on all aspects of contentious matters and we will always provide practical and commercial advice with a view to resolving any dispute as quickly and cost efficiently as possible.
On January 17, 2019