Partner, Peter Littlefield outlines three scenarios for contesting a will and discusses the process behind disputing a Will. Watch the video here.
Peter: After somebody has died, there is often a bit of concern by family members if the will doesn't have legacies in it for them and they can be slightly concerned that there was some undue influence or some pressure put on the testator when they were signing their will. In those circumstances, they seek advice on what they can do and whether the will can be reduced. It is quite rare but it does happen. In those circumstances they'll come to us, and we will ask them a variety of questions about the circumstances surrounding the will and the instructions that were given.
There are generally three different grounds on which a will can be reduced. The first one is incapacity – so, did the person understand the nature and effect of the document they were signing at the time the will was signed and actually the test for that is quite high and it's quite difficult in Scotland to reduce a will on the grounds of incapacity. It does happen and it is possible, but the test is quite a high one. The other ground is facility and circumvention, and it's a slightly lesser test. In those situations the testator would have had to have been facile, so a slightly weakened state of mind, and there must've been an element of deceit or dishonesty by somebody else trying to benefit from the will; so, the idea of getting round the testator, circumventing their wishes. Another ground is undue influence and that really happens if there's a person in a position of power exerting control over the testator and often that's either a doctor or lawyer and, you know, in the old days they might try to get a legacy for themselves or their children into a will. So, that's really the main grounds on which a will is generally challenged or reduced in Scotland.
The concept of legal rights has been around in Scotland for centuries and the idea is that somebody shouldn't be allowed to disinherit their spouse, civil partner or children from their estate. So, no matter what the will says, a spouse, civil partner or child has an automatic claim on the estate. It's not a court action, it doesn't involve reducing the will in any way, but it means they can receive a proportion of the estate no matter what the will says. The amounts that they can receive depend on whether there are children and a spouse. So, a spouse can claim a one half of the net movable estate if there are no children, and a one third of the net movable estate if there are children. And the children have an entitlement to claim a one half of the net movable estate if there is no spouse, and a one third of the net movable estate if there is a spouse. Now, the children's claim is a collective entitlement, so they would all be able to share in that one third. In other words, if somebody dies and they leave a spouse and three children, each of the children would be able to claim a third of a third, so a ninth, of the net movable estate. Now, the net movable estate is everything other than land, buildings, houses – the value of those things is not included in that calculation and various deductions can be taken off when calculating the sum. So sometimes it can go down to quite a small figure but it's worth knowing and certainly worth making a claim if the will doesn't include you.