It’s very difficult to challenge a Will in Scotland. When someone makes a Will, they set down their wishes for what should happen after they die. They decide who should receive what share in their estate. The terms of their Will must be followed when that person dies. That’s exactly what happens in almost every case – unless someone makes a successful challenge.
There are only a limited number of grounds on which a challenge can be launched.
Legal Rights of spouse or civil partner and children
The spouse or civil partner and children of the deceased have automatic rights to share in the estate. These rights are called Legal Rights. That means they can claim their Legal Rights if they are not happy with the share of estate left to them in the Will. No formal or court procedure is required to exercise Legal Rights. It is sufficient to lodge a letter with the solicitor winding up the estate to stake a claim for Legal Rights. However, if a claim for Legal Rights is exercised, teh Legal Right will replace any directions contained within the Will.
Are there other ways to contest a Will?
The options are limited to a few specific grounds. It’s simply not sufficient to claim that you were told you’d be left something, but the Will doesn’t mention you!
Your grounds need to be solid if you want to contest a Will in Scotland. You need strong, reliable evidence that something was wrong when the Will as prepared. Without strong, reliable evidence, it’s likely you’ll be wasting your time if you challenge a Will.
How can you successfully challenge a Will?
There are really only four grounds for contesting a Will. These are Incapacity, Undue Influence, Facility and Circumvention and Fraud. Let’s now look at these four grounds.
You need to be able to provide evidence that they person making the Will wasn’t capable at the time the Will was made. That means you need to show that the person didn’t understand what they were doing when making the Will. You might also have to show they didn’t understand what they were leaving to whom or the effect of making a Will.
Undue influence is when it can be shown that someone in a trusted relationship abused their position. They used their influence to benefit from the Will. You need to establish a few things of you are succeed with this challenge to a Will:
- That there was such a relationship
- There is evidence of pressure being applied
- The pressure applied overcame the decision-making of the person making the Will
Facility and Circumvention
This is a similar type of claim as the undue influence claim. You have to be able to show that the person who made the Will was weak. In addition, you have to show they’ve been taken advantage of because of this. You’ll also have to show the they couldn’t prevent unfair pressure being brought to bear on them because of circumstances such as ill-health or old age.
Fraud is the final ground for challenging a Will. This can mean that someone has benefitted as a result of fraud. It could include a Will that has been fraudulently signed by someone other than the person making the Will.
If you think you have grounds, what do you do next?
You need to raise proceedings in the Court of Session or Sheriff Court. Importantly, you have to provide evidence to the court. The types of evidence required may include:
- Medical files
- Statement from the solicitor who made the Will
- The solicitor’s notes of the meeting when the instructions were given or the client’s file
- Statements from doctors
- Evidence from third parties to support any claim
The court will not consider any case where the person contesting a Will just thinks that it’s not fair that they’ve not been left anything. Moreover, clear evidence is required to support any claim. We strongly recommend you ask a solicitor to investigate the circumstances in which the Will was made before embarking on challenging a Will.
What happens if the challenge is successful?
If the challenge is successful, the Will is reduced. That means it’s treated as if it hasn’t been written. If an earlier Will still exists, that then becomes the valid Will. If no earlier Will exists, the estate becomes intestate. This means it will be distributed under the Succession (Scotland) Act 2016. There is no guarantee the person contesting a Will will receive a share in the estate under this legislation!
If you are considering contesting a Will, you also have to consider the circumstances in which is was made. Most Wills in Scotland are prepared by a solicitor. When we prepare a Will for a client, we make sure we check that we’re properly reflecting the true wishes of the person making the Will.
In conclusion, if you decide to challenge a Will, it’s important to take stock and determine which of the grounds would apply. You might discover that the reason you didn’t receive a mention in the Will was because the person making it didn’t want to leave anything to you!
It’s important that when you make your Will you do it properly. This will mean that the changes of a challenge will be slim. If you would like to discuss your Will and how we can help you, please get in touch with us.