Successfully challenging a will in the Scottish Courts, Part 1

In this series of blogs we look at the circumstances in which a will can be successfully challenged in the Scottish Courts on the grounds that the deceased person did not have legal capacity.

Somerville v Allan

There are relatively few cases where a will has been successfully challenged in the Scottish courts on the grounds that the deceased lacked legal capacity. One significant issue facing anyone thinking about making such a challenge is an evidential one: how does one establish what a person truly intended to do with their estate when that person is no longer able to give evidence?

While there will invariably be challenges in bringing such a claim, they are by no means insurmountable. Somerville v Allan, is a recent example of a successful challenge in the Sheriff Court. In Somerville, a nephew successfully challenged his aunt's will on the ground that she did not have capacity to grant the will. The court summarised the legal basis for making challenges based on legal capacity to make a will and each of these will be considered in subsequent blogs. The successful outcome was, however, very much dependent on the facts of the case and in this first part we look at those facts.

Background Facts

The Pursuer (the person bringing the court action) was the Deceased's nephew and he brought the claim against his uncle, the deceased's brother (the Defender).

The Pursuer and his deceased aunt had had a very close relationship and the Pursuer visited her at her home on a weekly basis. The Deceased had made a will in 2018 (the 2018 Will) which appointed the Pursuer as her executor and made him a residuary beneficiary which would have meant he would have inherited most of her estate including her house. The Pursuer was not involved in the preparation of the 2018 Will but his aunt had told him what the 2018 Will contained.

Up until 2019 the Deceased and the Defender had been estranged. They reconciled and in Spring 2019 and the Defeder moved into the Deceased's home. At around that time, the Deceased was diagnosed with serious health issues which resulted in several hospital admissions.

In August 2019 the Defender prepared a new will for the Deceased on his computer (the 2019 Will). The 2019 Will appointed the Defender as her executor and left her entire estate to him. The 2019 Will was signed by the Deceased on 9 August 2019 before a witness who was a friend of the Defender.

The Defender then accompanied the Deceased to her lawyer's office. The deceased spoke with a solicitor and asked them to replace the 2018 Wil (which they had prepared) with the 2019 Will. She informed her solicitor that she had changed her Will because her brother was now helping her and she hadn't seen much of her nephew since she told him he would inherit her estate. The solicitor did not have concerns about the Deceased's capacity at that meeting. The Deceased also gave instructions to her solicitor to prepare a Power of Attorney in favour of the Defender. A few weeks later, the Deceased returned to her lawyers office and signed the Power of Attorney, this time meeting with a different solicitor (again, the solicitor had no concerns about her capacity). The Deceased died around six weeks after signing the 2019 Will.

Decision by the Sheriff (Judge)

The court decided that while the Deceased probably did believe that her nephew was no longer helping her when she met with her solicitor in August 2019, that was not actually true and the Pursuer had taken her to medical appointments, visited her in hospital and been regularly involved in arrangements for her care. On the other hand, there was evidence that the Defender had been "uncaring" towards her and appeared to have had minimal involvement in her care.

The Sheriff decided that the Deceased did not have legal capacity to make the 2019 Will and ordered that it be reduced (treated as if it had never been signed). The effect of that was that the 2018 Will in favour of the Pursuer revived.

In this case the Sheriff had the benefit of medical evidence from three doctors, including: (i) a medical expert on capacity who prepared a report based on the Deceased's medical records; (ii) the Deceased's GP; and (iii) a consultant psychiatrist who had assessed the Deceased during a hospital admission.

Commentary

This case highlights the importance of contemporaneous evidence as to the mental state of the deceased at the time the disputed will was granted. Medical evidence was crucial in this case and is likely to be the paramount factor in any challenge based on a lack of capacity.