Disputes over wills and inheritance are growing exponentially in many legal jurisdictions around the world. More cases than ever are going to court and as a result, we are seeing more decisions providing useful commentary on the legal principles which decide these disputes.
Two recent decisions, Haq v Irvine and Scott v Reeves, provide a useful reminder of the circumstances in which the Scottish courts will consider reducing a will and the level of evidence required to do so successfully.
Reduction of a will
Where a will is successfully challenged, the court may set it aside by granting decree of reduction. The effect is that the will is treated as having no legal effect. Depending on the circumstances, an earlier will may govern the distribution of the estate or, failing that, the estate may be distributed in accordance with the fallback rules provide by the law, known as intestacy.
The grounds for challenging a will in Scotland include lack of testamentary capacity, facility and circumvention, undue influence and fraud. While these principles are well established, the recent decisions in Haq and Scottprovide helpful insight in how they are applied in practice.
Scott v Reeves: when a will is vulnerable to challenge
In Scott v Reeves, the Sheriff Court considered a homemade will sign by a woman who had been diagnosed with vascular dementia. That will was significantly different from her previous, professionally drafted, will in that it favoured one of her children over her others in relation to the deceased's principal asset.
The pursuer challenged the validity of the will on the basis of facility and circumvention. Facility is a weakness of mind or vulnerability affecting an individual's ability to safeguard their own interests. Circumvention involves taking advantage of that vulnerability to procure a deed that would not otherwise have been granted.
Having considered the medical evidence and the circumstances surrounding the preparation of the will, the court concluded that the deceased's dementia rendered her vulnerable and that the will had been obtained through facility and circumvention. The will was therefore reduced.
The decision highlights the risks which can arise where significant testamentary changes are made without independent legal advice, particularly where the testator is elderly, suffering from cognitive decline, or dependent upon a potential beneficiary.
Haq v Irvine: a reminder of the high threshold for undue influence
Although the facts and circumstances in Haq v Irvine were somewhat similar to Scott, the outcome was different.
The case involved a challenge to a will signed by a terminally ill man which left his estate to his second wife. The man’s children sought reduction of the will, in this case by claiming that it had been brought about through undue influence.
The Court of Session rejected the challenge. While there was evidence of family tension and disagreement regarding the man’s wishes for his estate, the court did not accept that his free will had been overcome. The evidence fell short of establishing undue influence and the action for reduction was refused.
The decision is an important reminder that the Scottish courts will not necessarily infer that there has been undue influence simply because a will benefits one family member more than others or is quite different from earlier wills. Showing that there has been influence is not, in and of itself, enough. A party challenging a will must establish evidence that the pressure or influence was improper.
Practical implications
These decisions reinforce several important points for people making wills, their families and professional advisers.
First, independent legal advice remains one of the most effective safeguards against future disputes. A professionally prepared will can provide valuable evidence of a person’s intentions and capacity at the time instructions are given.
Secondly, where there are concerns regarding capacity, obtaining contemporaneous medical evidence confirming that the person making the will has capacity to do so may significantly reduce the risk of a later challenge, and provide better prospects for successfully upholding the will.
Finally, those considering a challenge should be aware that reduction will not be granted lightly. The courts will intervene where there is evidence that the free will of the person signing the will has been overcome. As these cases demonstrate, allegations of undue influence in particular will be subjected to careful scrutiny.
As the Scottish population continues to age, increasingly complex family structures become more common, and the level of financial inequality grows, disputes concerning the validity of wills are likely to increase. These recent decisions provide welcome guidance for both those contemplating a challenge, and those involved in estate planning and will drafting.
If you have concerns, or are in dispute, about a will our Band 1 ranked private wealth disputes team can help.
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