Contesting a will in Scotland

This information only applies in Scotland.

Contesting a will in Scotland can be a difficult process. While it is accepted that a person is entitled to decide how their property is distributed after they die, there are specific circumstances when the contents of a will can be challenged.

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Grounds for contesting a will

There are four grounds for contesting a will.

Incapacity

This argument says that the person who made the will wasn't capable of understanding what they were doing. They were not able to understand the effects of the will, the amount of property they were giving away or why they were leaving this property to a particular person.

Undue influence

A will might be overturned if a relationship of trust and confidence has been abused. Usually, this means that someone who was in a position to exert a strong influence over the deceased has substantially benefited from the will. It needs to be shown that this sort of relationship existed, and for there to be evidence that pressure was put on the person who made the will. The pressure must have been sufficient to overpower the will or freedom of the deceased.

Facility and circumvention

You might be able to have a will overturned if you can show that the person who made the will was weak and that someone else took advantage of them as a result. This might have been due to ill-health, old age, and that as a result, they were unable to prevent the other person from putting unfair pressure on them.

Fraud

You may be able to challenge a will someone has benefited as a result of fraud.

How do you contest a will?

The validity of a will can be challenged by applying to either the Court of Session or the Sheriff Court. If the application is successful, the will is ‘reduced'. This means that it is invalid and will be treated as if it never existed. It will be up to the court to decide if it is reasonable to reduce the will. This is done by looking at the evidence presented to support the reduction.

What evidence will the Court look at?

Depending on the ground on which the will is being challenged, the Court might look at:

  • medical files
  • statements from doctors
  • statements from the solicitor who drafted the will
  • notes from meetings the solicitor had with the person who made the will and any instructions they gave
  • the client case file kept by the solicitor

The court will not consider an application because a beneficiary, or someone who expected to be a beneficiary, thinks the will is unfair. There must be clear evidence that supports the claim that it is not valid. Instructing a solicitor to carry out full investigations before you consider applying to have a will overturned is strongly advised.

What happens if the will is overturned?

If an earlier will exists, this will be revived. This means that the old will is now considered to be valid and the estate will be shared in line with this. If an earlier will doesn't exist, the deceased's assets will be distributed under the rules of intestacy.

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