This note will be the second in a four-part series covering the grounds on which a will can be challenged in Scotland. This section considers a challenge on the grounds of facility and circumvention. 

Where a testator has capacity but it has been diminished in some way which meant that the testator was more susceptible to be persuaded to make a will in a certain way or enter into a disposition gifting certain assets to an individual, facility and circumvention might apply. Three matters have to be proved: 

  1. the testator was facile or easily imposed upon;
  2. there was circumvention or fraud; and
  3. the claimants (normally family members) suffered harm.

As noted in the case of Horne v Whyte [2005] CSOH 115, direct evidence is normally required for points 1 and 3; however, point 2 can often be inferred from the manner in which the individual who has allegedly taken advantage of the testator has acted. Lady Smith further noted in this case that the three requirements should ‘be looked at as a whole and the strength of the pursuer’s case on one matter may compensate for weakness on other matters’.

The recent case of O’Neil v O’Neil [2017] SC GLA 40 did, however, highlight the fact the all three elements must exist in order to establish a case. In this case, a son attempted to challenge his mother’s will and a disposition by his mother in favour of his two brothers. The disposition provided the mother with an entitlement to the use and income of her home (known as a liferent) with the property to be made over to the two defending sons on death. Similarly, the will made over the residue of the mother’s estate to the two defending sons. Although the son who raised the action felt aggrieved by his mother’s wishes (especially considering that he had made financial contributions towards his mother’s property), his case provided no basis on which to establish points 1 and 2 of the 3-part test, and therefore failed.

It is clear from the O’Neil case that facility and circumvention cannot be relied upon by an individual who is simply upset with the contents of a family member’s will. However, although difficult to prove, if the three elements can be established, the law in Scotland provides a clear basis on which to challenge a will through the concept of facility and circumvention.

 
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