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.
What are the grounds for challenging a will in Scotland?
In Scotland, a will can only be challenged on the following grounds:
Incapacity
In order to make a valid will, the person making the will (the 'testator') must have testamentary capacity. Firstly, they must firstly be old enough. In Scotland, anyone over the age of 12 years old 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 they own that is being left in their will?
- Did the testator appreciate the nature and extent of obligations which they may have owed to people and the consequences of excluding them from their 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, it must be shown that the testator was fragile or impressionable as a result of mental or bodily weakness, falling short of actual incapacity. This is referred to as “facility”. For example, the facility could be caused by age, illness, bereavement or even alcohol.
- Secondly, it is necessary to show, with evidence, that the testator's vulnerability was taken advantage of and that they were pressured to leave their will in a way that they would not have otherwise. This is the “circumvention”.
- Finally, there must be some harm or loss as a result of the facility and circumvention. However, if both facility and circumvention are proved, the very fact that a new will was made in those circumstances will be sufficient.
Undue influence
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, lawyer, child) exerted influence over the testator so that the will was prepared in a particular way.
Whilst this usually benefits the person exerting their influence, that does not need to be the case. There is also no limit as to what type of relationships create sufficient trust and responsibility for that part of the test to be met. The question is whether the will was genuinely a free and voluntary act of the testator or whether the testator was coerced to make their will in a certain way.
Fraud
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 they 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 lawyers in our Personal and Family and Litigation teams, 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.
How to contest a will
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Initial steps to take
The first step to consult with a lawyer who specialises in contentious estates and will disputes. They can advise on the strength of your case and whether you have an interest in the estate i.e. if you are a beneficiary under the will, would inherit under the rules of intestate succession if there wasn't a will, or a legal rights claimant (see below).
The next step is to collate any evidence pertaining to the deceased's physical and/or mental health and proof of their state of mind at the time they made the will which may have impacted on their capacity to provide instructions and understand the implications of what they were doing. This could be in the form of, but not limited to, the deceased's medical records, statements from close family members or friends of the deceased, statements and notes from the lawyer who drafted the will etc. The quality of the evidence can be reviewed and advice taken as to prospects of success before proceeding to take any further action.
If the executor of the disputed will intends to apply to the court for grant of confirmation (Scottish equivalent of 'probate'), then the person seeking to contest the will can lodge a caveat with the Sheriff Court so they will be notified if certain actions are taken relating to the estate, for example, if confirmation has been applied for. When the caveat is triggered, the person who lodged it will usually have to advise the court within a 24-hour period whether the action will be opposed.
If the action is to be opposed, then the court will either arrange a caveat hearing in front of a sheriff or the person challenging the will can initiate a court action to set aside the will, treating it as if it never existed. This would be done by preparing an initial writ. Once the court action is raised, the applicant can then ask the court to put the court action on hold (known as 'sisting') to allow negotiations to take place with the executor. If negotiations are successful, the action would not progress. If negotiations were unsuccessful, the applicant would then need to decide at that stage whether they wanted to progress with the court action. It is important to note that raising a court action is a lengthy process, involves significant costs and provides no guarantee of a successful outcome. -
Role of the executor
The appointed executor's primary responsibility is to manage and distribute the deceased's assets in accordance with the will. Sometimes the duties of the executor may conflict with their personal interests, particularly if they are also a beneficiary. The executor must act in the interests of all beneficiaries, and not just some of them. As such, when defending an action to challenge a will, the executor must act impartially between beneficiaries. Because of that, in many cases an executor will not defend the court action, but leave it to the beneficiaries to sort out. Where an executor also has an interest in the estate as a beneficiary, it will likely be possible for them to defend the action in that capacity.
If the executor's conduct is in breach of his duties towards the estate, or if they have failed to undertake their duties and responsibilities as an executor, then the beneficiaries (or any interested party) can petition the court to intervene. Depending on the nature and severity of the misconduct, the court may decide to remove the executor or to appoint a new executor.
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What are the time limits for contesting a will?
Whilst there are no time limits for contesting a will in Scotland per se, it is strongly advisable to act as soon as possible given the complexity and intricate nature of challenging a will. Moreover, bringing a claim several years down the line may impact on the likelihood of a successful outcome.
Some claims are subject to very specific time limits. For example, if the deceased did not leave a will and the surviving cohabitant wished to make a claim against the estate, they must raise court action seeking financial award under section 29 of the Family Law (Scotland) Act 2006 within a strict timescale of 6 months of the date of death.
If a person wishes to claim their legal rights (see below), these must be claimed within 20 years from the date of death.
Evidence required by the court
The below outlines the evidence that would be required by the court:
Medical records and expert testimony
Medical records help the court decide if the testator had the mental capacity to make a valid will. They show the testator’s mental and physical health before and during the will’s creation. This may include diagnoses like Dementia or Alzheimer’s and details of any treatments. These records help the court understand if the testator could understand the nature and effect of their will at the time it was executed. It is important to remember, though, that the court will be concerned about the deceased’s condition at the time the will was signed. Medical evidence will only go some way to evidencing this unless there are relevant notes from that time.
The court may also rely upon the opinion of qualified experts. The expert’s role is to assist the court with matters in their area of expertise. The type of expert used depends on the circumstances of the case. Common experts in will challenges include:
- Medical experts – to say whether the testator had the mental capacity to understand the nature and consequences of making a will.
- Handwriting experts – to check if the will is authentic.
- Estate planning lawyers – to explain legal terms and identify unusual details in the will
Witness statements
This includes the evidence of people who knew the testator and can tell the court about the testator’s state of mind and behaviour before the will was made. Witnesses might include the lawyer who prepared the will, those who witnessed the will being signed, and family or friends. Letters, emails, and texts can show whether the will matches the testator’s known intentions. Notes from the lawyer may also explain why certain family members are excluded from the will.
Previous versions of the will
Looking at whether the testator made any previous wills, and reviewing their contents can help identify concerns about the testator’s mental capacity. Copies of earlier wills can reveal the testator’s past intentions. If the most recent will is significantly different, especially without a clear reason, it may suggest the testator lacked the capacity to make those changes.
Legal rights in Scotland
What are your legal rights in Scotland?
Understanding your legal rights
Legal rights are a distinctive feature of Scots law, sometimes informally referred to as 'forced heirship'. Legal rights act as a safeguard to protect certain family members from being disinherited. If a deceased person was domiciled in Scotland at the time of their death, then certain family members have an automatic entitlement to claim a fixed portion of a deceased person's estate, regardless of the terms of the deceased's will. It is not possible to defeat legal rights in a will.
The extent of the legal rights claim will depend on who survives the deceased. Legal rights can be claimed by the surviving spouse or civil partner, and the children (including adopted children) of the deceased. If a child has predeceased the deceased but is survived by their own children, then the grandchildren are entitled to their late parent's legal rights by way of representation.
Children have a right to collectively share a one-third of the net moveable estate if their late parent was survived by a spouse, and one-half if not. The funds available are limited to cash assets only, after deduction of debts applicable to the moveable element of the estate such as inheritance tax, funeral costs, expenses to obtain confirmation and realisation of the assets. Heritable property (i.e. land or buildings, including the family home) is not subject to legal rights.
Any legal rights claimants may therefore elect to claim their legal rights or to accept terms of the deceased's will. Even if legacies have been made in favour of the surviving spouse or civil partner and children, this does not prevent them from claiming their legal rights. However, it is not possible for them to take both their legacy under the will and claim their legal rights; they must choose one. Legal rights must be claimed within a period of 20 years of the deceased's death.
Difference between legal and moral rights
Whilst it is not possible to defeat any potential legal rights claims in the will, in practice it is usually the case that the children of the deceased will not wish to claim their legal rights on the first death if this would financially prejudice their surviving parent, particularly if the wills are drafted in such a way as to pass the combined estate to them on the second death. Indeed, family members may feel morally obligated to respect and (reluctantly) accept the deceased's wishes, even if the will is not in favour of themselves.
However, it is ultimately up to the deceased's surviving spouse or civil partner and children to decide if they wish to claim their legal rights or discharge them and follow the terms of the will.
Impact on inheritance
The surviving spouse or civil partner and children of the deceased may decide to claim their legal rights, particularly if the value of the legal rights claim exceeds that of the legacy under the will. In addition, such a claim may be a useful tax planning device. A legal rights claim is a debt against the estate and must be settled before the remaining estate is distributed in accordance with the terms of the will. Any claims made will therefore reduce the value of the estate for the named beneficiaries.
Depending on the person's relationship to the deceased, it may be more efficient and cost-effective to make a legal rights claim than challenging the will.
What happens if the will is overturned?
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Redistribution of estate
If the court overturns or 'reduces' the contested will, then it is treated as if it was never created. The testator's previous will then take effect (if this had not been destroyed after execution of the new will). If there is no other will, then the rules of intestate succession will apply. The intestacy rules dictate the division of the estate to surviving family members where the deceased died domiciled in Scotland.
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Impact on beneficiaries
If the will is successfully reduced, then this will ultimately change the distribution of the estate as the executor cannot distribute it based on its terms. This may result in the named beneficiaries in the overturned will not receiving any inheritance under the terms of a previous will nor under the intestacy rules. Depending on their relationship to the deceased, they may not be eligible to claim legal rights.
It is also important to note that the executor's properly incurred costs of defending any action will be borne by the estate. If the executors have a legitimate interest in defending the action, there will be a real risk that the (new) beneficiaries are left with nothing if the litigation costs exceed the value of the estate. Unless the executors have defended the action contrary to their duties, they will not be personally liable for any expenses awarded to the successful party. -
Possible legal consequences
If the estate is distributed within the first six months of the date of death, then the executor can be personally liable to make good any claims intimated within that timeframe. It is therefore strongly advisable that the executor waits at least six months before distributing the estate to allow for any potential legal challenges or creditors' claims to be made.
How we can help
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 lawyers in our personal and family and dispute resolution and risk teams, we can deliver on all aspects of contentious matters.
Find out more
Contact us
We will always provide practical and commercial advice with a view to resolving any dispute as quickly and cost efficiently as possible. For more information, please get in touch.
Get in touchOther frequently asked questions
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Who can contest a will?
Anyone with a legal interest in the estate can challenge a will, provided there are sufficient grounds to do so. This could be a beneficiary under the will, a person who would be entitled to the estate under the intestacy rules, or a legal rights claimant.
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Role of legal advice and representation
Whilst it is always open to a party to represent themselves in court, the importance of receiving advice and representation from specialist lawyers cannot be underestimated. Will challenges in Scotland can be raised in the Court of Session in Edinburgh or the local Sheriff Courts. In the Court of Session, parties must be represented by a solicitor-advocate or advocate. In Sheriff Courts, parties can be represented by a lawyer, solicitor-advocate, or advocate. Brodies has a number of lawyers and solicitor-advocates who are experienced in will challenges and can represent clients in every civil Court in Scotland.
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How much does it cost to challenge a will in Scotland?
The cost of defending a court action varies from case to case. Much depends on the court in which the action has been raised; the grounds of challenge; and the complexity of the arguments. The vast majority of court cases settle before a trial, and the costs will also depend on whether settlement is achieved and at what stage. If you are considering challenging a will or have been served with court papers, please get in touch and we can discuss the likely costs involved in your particular circumstances.
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What invalidates a will in Scotland?
The three key legal requirements of a will must be met for it to be a valid testamentary writing. There must be:-
(1) Testamentary capacity;
(2) Testamentary intention; and
(3) Subscription – it must meet the legal formalities under Scots law, namely that it must be signed by the testator at the end of the document and bear the signature of a witness.
A will lacking any of these elements is invalid.
If the will does not comply with all the requirements for validity under the Requirements of Writing (Scotland) Act 1995, i.e. it is not self-proving or 'probative', then it must be proved in the Sheriff Court where the deceased latterly resided prior to applying for grant of confirmation. It is for this reason that it is strongly recommended that the will is prepared by a professional to avoid any formal validity issues and additional expense to the estate.
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