Challenging a Will in Scotland: Grounds for Disputing the Validity of a Will

Can You Challenge a Will in Scotland?

A Will is intended to record a person's wishes about how their estate should be distributed after their death. However, there are circumstances where concerns may arise about whether the Will is legally valid or whether it truly reflects the deceased's free and informed decisions.

If you believe a Will should not be accepted, it may be possible to challenge it through court proceedings.

However, a Will cannot be challenged simply because someone considers it unfair or because they believe they should have received more. There must be a recognised legal basis for questioning its validity.

What Are the Grounds for Challenging a Will in Scotland?

There are several potential grounds on which a Will may be challenged, including:

• Lack of testamentary capacity.

• Undue influence.

• Facility and circumvention.

• Fraud or forgery.

• Failure to comply with legal requirements for signing the Will.

• A mistake affecting the validity of the document.

Each case depends on its own facts, and strong evidence is usually required before a court will set aside a Will.

Challenging a Will Due to Lack of Testamentary Capacity

One of the most common reasons for challenging a Will is a concern that the person making it did not have the required mental capacity at the time it was signed.

A person must understand the nature and consequences of making a Will, including:

• That they are making a document dealing with their property after death.

• The general extent of their assets.

• The people who might reasonably expect to benefit from their estate.

• The effect of the decisions they are making.

A diagnosis of dementia or another medical condition does not automatically mean someone lacked capacity. The issue is the person's understanding at the specific time the Will was made.

Evidence about the deceased's health, medical records and circumstances at the relevant time may be important.

Challenging a Will Due to Undue Influence

A Will may be challenged where someone has improperly influenced the deceased into making decisions that they would not otherwise have made.

Undue influence is more than ordinary persuasion or someone expressing their wishes. The concern is that the deceased's free decision-making was affected by improper pressure.

Examples may include situations where:

• Someone exerted control over the deceased.

• The deceased was vulnerable and dependent on another person.

• A beneficiary pressured the deceased into changing their Will.

• The terms of the Will appear inconsistent with the deceased's previous intentions.

These cases can be complex and require careful analysis of the relationship between the deceased and those around them.

What Is Facility and Circumvention?

In Scotland, a Will may also be challenged on the basis of facility and circumvention.

This involves two connected issues:

• Facility: the deceased was in a vulnerable or weakened state and susceptible to influence.

• Circumvention: another person took advantage of that vulnerability to obtain an unfair benefit.

This is a distinct legal ground recognised by Scots law.

Evidence about the deceased's circumstances, relationships and the events surrounding the making of the Will will be important.

Challenging a Will Because of Fraud or Forgery

A Will may be invalid if there are concerns that it was affected by fraud or forgery.

Examples may include:

• A signature being falsified.

• A document being altered improperly.

• Someone falsely representing the deceased's wishes.

Where fraud or forgery is suspected, specialist legal advice should be obtained urgently because evidence may need to be preserved.

Can a Will Be Challenged Because It Was Not Properly Signed?

A Will must comply with certain legal requirements.

If there are concerns about whether the Will was properly executed, this may affect whether it is legally valid.

The circumstances surrounding the signing of the Will, including who was present and how the document was completed, may be relevant.

What Evidence Is Needed to Challenge a Will?

Will disputes are often decided on the evidence available.

Relevant evidence may include:

• The original Will.

• Earlier Wills.

• Medical records.

• Solicitor attendance notes.

• Correspondence about the preparation of the Will.

• Witness statements.

• Information about the deceased's relationships and circumstances.

• Evidence from people involved in preparing or signing the Will.

Obtaining and preserving evidence early can be critical.

What Happens If a Will Is Successfully Challenged?

If a court finds that a Will is invalid, the consequences depend on the circumstances.

The estate may then be dealt with under:

• An earlier valid Will, if one exists; or

• The rules of intestate succession if there is no valid Will.

The practical outcome will depend on the deceased's circumstances and the documents available.

Can You Challenge a Will If You Were Left Out?

Not usually.

A person cannot challenge a Will simply because they have been excluded or because they believe the deceased made the wrong decision.

However, if the reason for exclusion is connected to a legal issue affecting the validity of the Will, such as undue influence or lack of capacity, a challenge may be possible.

There may also be separate legal rights available to certain family members under Scots law, depending on the circumstances.

Is There a Time Limit for Challenging a Will?

The relevant time limits depend on the nature of the claim and the circumstances of the estate.

However, delaying action can create practical difficulties, particularly if estate assets have already been distributed.

If you have concerns about the validity of a Will, it is important to seek legal advice promptly.

What Should I Do If I Think a Will Is Invalid?

If you believe there are grounds to challenge a Will, you should consider:

• Obtaining advice before taking steps that may affect the estate.

• Securing copies of relevant documents.

• Identifying who prepared the Will.

• Preserving evidence about the deceased's circumstances.

• Considering whether court proceedings may be required.

Early legal advice can help determine whether there is a realistic basis for challenging the Will and the appropriate strategy.

Frequently Asked Questions

How do you challenge a Will in Scotland?

A Will is challenged through legal proceedings where there is a recognised legal basis to dispute its validity. The appropriate procedure depends on the circumstances of the case.

Can a Will be overturned in Scotland?

Yes, if a court determines that the Will is invalid, for example due to lack of capacity, undue influence, facility and circumvention, fraud or improper execution.

Can I challenge a Will because I think it is unfair?

No. Unfairness alone is not normally enough. There must be a legal reason why the Will should not be accepted as valid.

How much does it cost to challenge a Will?

The cost depends on the complexity of the dispute, the evidence required and whether court proceedings are necessary. Early advice can help assess the likely costs and risks.

Who can challenge a Will in Scotland?

A person with a relevant interest in the estate may be able to challenge a Will, but whether someone has the right to raise proceedings depends on the circumstances.

Why Choose Seaward Law?

Disputes about Wills often involve complex legal issues and difficult family circumstances.

We advise clients across Scotland on contested Wills and estate disputes. We provide clear advice on whether there are grounds for challenge, the evidence required and the most appropriate way to proceed.

Whether you believe a Will is invalid or need to defend a Will challenge brought against an estate, we can assist.