The death of a loved one is a difficult time, and if you have concerns about the validity of their Will and whether their true intentions will be honoured, this can add to your distress.
If you are considering challenging a loved one’s Will, it is vital that you seek specialist guidance and representation. This is a difficult legal process, requiring clear and persuasive evidence. For practical advice and support when contesting a Will, please contact us.
When making a Will, the law requires that the testator is of sound mind. You may be able to challenge a Will under this ground if you have reason to believe your loved one was not capable of understanding the nature and consequences of their Will at the time of signing. The court will consider medical evidence, family members’ views on the deceased’s mental state and other key evidence to assess and determine their capacity.
Under this ground, it must be shown that
This occurs if a person in a position of trust, such as a doctor, carer, lawyer, parent or child, pressured the testator to make their Will in a particular way (often benefiting the person exerting pressure). It is necessary to show that, without the influence, the deceased would not have prepared the Will in that manner.
It is also possible to challenge a Will if there is persuasive evidence that someone has intentionally deceived the testator for their benefit. The difference between fraud and undue influence is that coercion is not required for fraud.
To formally challenge a Will, you will need to apply to the Sheriff Court or Court of Session to have the Will reduced (overturned). The document itself and all relevant evidence, which could include medical files and solicitors’ notes and statements, must be presented. The court will assess the evidence and decide whether to grant the reduction of the Will. The process can be time consuming and expensive.
The court will overturn the Will. This means it is treated as if it was never created, and any previous Will then takes effect. However, if no earlier document exists, the deceased’s estate will be distributed under Scotland’s Intestacy Rules.
It is strongly recommended that you seek specialist legal advice and representation if you are thinking about challenging a Will. The courts in Scotland are reluctant to interfere with a person’s written wishes and will only do so if there is strong evidence to support the claim that their Will is invalid.
Before raising an action, our team will conduct a thorough investigation to determine whether there is convincing evidence behind your application. If we think your case has a good chance of success, we will also inform you of what your position will be if a reduction is granted by the court, i.e. under any previous Will or the Intestacy Rules.
Your lawyer will also explore all alternative options available to you, for example claiming legal rights, which could result in a certain and more cost-effective outcome. Whichever route you decide to take, we will represent and protect your best interests with commitment.
If you have any questions about the issues covered here, or if you wish to discuss any other contentious executries, dispute resolution, Wills or estate planning matters with our solicitors, please fill in our contact form or call us on 0131 341 3621.
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us.