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How do you contest a Will in Scotland?

Written by: Lesley Anderson
Category: Private Client
25 March 2022

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We are sometimes asked by family members about how they can go about contesting a Will. The usual situation is where a family member believes they are to receive something from the estate because the deceased had told them they would. However, following the death, the Will makes no provision for them. This then gives rise to questions about a potential challenge to the Will.

It is important to note that the deceased simply telling someone they were to receive something from their estate when they died is not a sufficient ground on which to mount a challenge. The fact that they are not mentioned in the Will does not mean that there is anything wrong with the Will.

Challenges to Wills in Scotland are rare and there are difficulties to overcome when making a challenge. The grounds on which the challenge is based need to be supported by strong, reliable evidence that something unusual or untoward happened whilst the Will was being prepared. If you do not have strong evidence of this, it is likely that you will be wasting your time and money trying to contest a Will.

How can I successfully contest a Will?

One of the first issues you need to address is whether the person making the Will had legal capacity to make one. If you are able to prove that the person making the Will did not understand what they were signing, that would provide a suitable basis for contesting the Will.

On the other hand, you might argue that the person making the Will was duped into signing it by someone else. This type of challenge is called facility and circumvention.

Another ground on which you can contest a Will is where someone pressurised the person into making the Will. This type of challenge is called undue influence.

The final basis on which you might be able to mount a challenge is where there has been some element of fraud involved in the creation or signing of the Will.

Consider how the Will was prepared

One of the key things you need to consider if you are thinking about contesting a Will is how the Will as prepared. The vast majority of Wills in Scotland are prepared by solicitors. This means that the solicitor will take instructions on preparing a Will directly from the client who wishes to make it. The solicitor will be able to assess the individual’s capacity to make the Will and, if there is any doubt, consult with the individual’s doctor, for instance, to elicit evidence of capacity.

The fact that a solicitor is involved means that the instructions on what should be contained in the Will come directly from the person making it. If there is any suggestion that the individual is being manipulated by a third party, the solicitor will address that with the person making the Will.

Fraud can never be ruled out but, again, when a solicitor prepares a Will for a client, the solicitor is usually present when the Wil is signed thus reducing the potential for fraudulent execution.

So, before you decide you are going to contest a Will, think carefully about all of the above points. And remember, just because you did not get a mention in the Will does not mean that you should have. All it means is that the person making the Will decided not to leave you anything in their Will. That might well be unfortunate, but it does not give you grounds to contest a Will.

Contact our Wills Lawyers

If you have any questions about making or changing a Will or if you would like to discuss dealing with someone’s estate, please contact us.

Written by:

Lesley Anderson

Partner
Lesley has lived in North Berwick for most of her life, attending Nursery, Primary and Secondary School in the area.  Lesley joined Paris Steele in 2002 as a receptionist and during her time here has undertaken a Paralegal qualification in Conveyancing, before progressing to complete the Law Degree and becoming a Partner in 2016. Lesley lives just outside North Berwick with her husband, two children and her two pet Labradors.  In her spare time Lesley enjoys running, Canicross (running with her dogs), walking, skiing and sailing, although injury has prevented her completing the latter over the last few years.  

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