When the Will isn't Always the Way - Challenging a Will in Scotland

Following the death of a loved one, you may have to take steps to deal with the administration of their estate. This task is often made easier when the deceased created a will prior to their death. However, what happens when the will does not appear to reflect the intentions of the deceased?

If you are of the view that there is something improper about the will then a court action of reduction is the way to rectify that impropriety.  In Scotland, there are two grounds on which a will can be challenged:-

1. Essential Validity – this takes into account the capacity of the testator and whether any external pressures were applied to influence the content of the will. There are three sub-areas which are relevant to the essential validity to the will. If one or more of these can be proven, then there may be grounds to challenge the will and raise an action of reduction. The three sub-areas are as follows:-
2. Formal Validity – this deals with the procedural requirements that must be followed when creating the will. If these have not been followed, then the will will not be a valid testamentary document. You should seek legal advice in order to establish whether or not there is scope to challenge the formal validity of the will.
   1. Incapacity – this is the most common ground for challenging the validity of a will. It is necessary for a testator to be of ‘sound mind’ and capable of comprehending the nature and effect of the act of making a will. This is predominately a fact based test and will take into the account the circumstances at the time the will was created. It will be for the court to decide whether or not the testator had testamentary capacity. In considering same, the court will take account of the circumstances in which the will was instructed, alongside any medical or other evidence which may assist in establishing the testator’s capacity.
   2. Facility and Circumvention - Facility in a testator is less than incapacity and is where the testator suffers from a weakness of mind, whether as a result of physical or mental illness or approaching senility, and can easily be imposed upon. Facility on its own is not a ground for seeking reduction of the will and must be coupled with circumvention by interested parties. The test for determining whether facility and circumvention applies is ‘whether the defender, taking advantage of the testator’s weakness and facility, procured the deed by fraud and circumvention’. In order to be able to challenge the validity of the will on this ground, you must be able to put forth evidence to show that (1) the testator was suffering from weakness of mind; and (2) an interested person took advantage of this weakness in order to procure the deed in their favour.
   3. Undue Influence – This test differs from facility and circumvention in that you do not require to prove that the testator suffered from a weakness of mind. All that is necessary to show is that there is a position of influence on the part of the interested party which has been used by them to obtain advantages in the testator’s will. The person of influence must be someone who was acting in a position of trust and responsibility (e.g. a family member; a carer; a doctor; a solicitor etc.). They must also have exerted their influence over the testator in order to ensure that the will was prepared in a certain way (usually to their advantage). In short, you have to be able to show that the will was not created freely and that the testator was coerced into making the will.

If one or more of the above factors can be proven then the court will issue an order reducing (overturning) the will.  It is worth noting that challenging a will is a notoriously difficult action to prove. The grounds are predominately fact-based and it may be difficult to convey to the court the testator’s actual intentions at the time of creating the will. If the action for reduction is successful, and the deceased had an earlier will then the court order will ‘revive’ that earlier will.  However, if the action for reduction is successful and the testator did not have a previous will, then their estate will be deemed to be intestate and will be required to be distributed in accordance with the Scottish laws of intestacy.

This article is for general information only. Nothing in this article should be taken as legal advice. If you require advice on challenging a will in Scotland, please contact our litigation solicitors on 0141 221 1919, or complete our online enquiry form.