Wills Under Scrutiny, Understanding How Scottish Courts Approach Challenges

Paul Forrester Smith, Senior Associate, originally wrote for The Scotsman.

Bereavement is a time of great sadness for families, but the loss of a loved one can also bring family tensions to the surface. For example, if a family member has been a primary carer and has been excluded from a Will, or if changes have been made to a Will late in life.   

Disputes can occur when someone challenges the validity, interpretation, or effect of a deceased person’s Will. In general terms the grounds for challenging a Will might be lack of capacity, lack of formal validity, undue influence, facility and circumvention, fraud or forgery.   

Dealing with each in turn: 

Lack of capacity – The granter (the person making the Will) must have had the mental capacity to understand what they were doing. In most situations medical evidence will be necessary to focus on evidence of dementia, cognitive impairment, or lack of independent thought. It is important to note that the relevant date is when the Will was signed.  Serious ill-health in itself may not be sufficient to deprive a person of capacity. 

Undue influence or facility and circumvention – A Will may be set aside if it was obtained through manipulation or pressure by someone who has the trust and confidence of the granter. “Facility and circumvention” is a legal concept whereby a vulnerable person was taken advantage of by someone who benefited from the Will. Medical evidence may again be an important factor.  

Lack of formal validity – It may not be strictly necessary to have a witness for a Will to be valid.   However, there can be legal requirements which need to be fulfilled.   

Fraud or forgery – If the signature or content is not genuine, the Will can be challenged. This is a rare situation and support from an independent handwriting expert may be necessary. 

If any of the recognised grounds to challenge a Will can be established the next formal step is to raise proceedings seeking to have the Will set aside either in the Sheriff Court or the Court of Session depending on particular circumstances. It may also be necessary to take steps in the meantime to prevent the distribution of the granter’s estate.  The burden of proof is on the person challenging the Will. The Scottish Courts will generally be slow to deprive a granter’s last will and testament of effect in all but the clearest of circumstances. 

Not all disputes challenge the validity of the Will itself. Other common issues involve: (a) ambiguous drafting or unclear intentions, (b) disagreements between executors and beneficiaries, (c) claims that an executor is failing in their duties or (d) questions about the valuation or distribution of assets. These disputes can involve applications to the Sheriff Court, or in more complex matters, to the Court of Session.

Many disputes are capable of resolution through negotiation or mediation, particularly in family situations where it can be important to maintain relationships.

The executors gain authority to carry out the granter’s wishes through the administrative process known as Confirmation. Although, it may be difficult to contemplate in the weeks and months following bereavement, taking early legal advice may be worthwhile if there are concerns about the granter’s Will or their wishes.

On a final note, one should never underestimate the difficulty of a challenging a Will, the financial cost and the strain that it might put on family relations.