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Contesting a Will
To challenge a Will, you need to raise an action in the Sheriff Court or the Court of Session to have the Will reduced (overturned).
A valid Will can be reduced on the following grounds:-
Age
A Will made by a person under the age of 12 is void.
Incapacity
If at the time of making the Will, the testator (the person who signed the Will) was incapable of understanding the nature or effect of the Will, then it is invalid. It would be necessary for the person who is challenging the Will to show that the mental condition of the testator means the Will should be considered as invalid. The fact that the testator has made provisions which seem unfair or malicious, for example, where no provision has been made for children or for a person who may have spent many years caring for the testator, does not necessarily mean that the testator lacked the capacity necessary to prepare the Will. Just because the terms of a Will may be objectionable to some people, particularly relatives of the testator, does not necessarily mean it should be invalid.
Fraud
Fraud would involve a testator being pushed into preparing a Will under some false apprehension, and so it involves deception by a third party. This is the least commonly used ground to challenge a Will.
Facility and circumvention
A Will can be challenged where it can be shown that facility and circumvention existed. The circumstances surrounding the preparation of a Will may lead to allegations that it was made as the result of someone persuading, coercing or otherwise influencing the testator. This is most commonly the case where the testator has revoked a Will and executed a new one in which for example a substantial bequest is given to a person who seems an unlikely beneficiary. This of course may arouse the suspicion that the beneficiary in question interfered with the testator’s free will.
For facility and circumvention to be argued, three elements must be present:-
- Facility – where a person suffering from a weakness of mind could be easily swayed by another person. This could be due to a bereavement/illness, misuse of alcohol, drugs, etc. This is not the same as a lack of capacity.
- Circumvention – this is pressure of some kind exerted on the testator by a third party. Even if it is proved that the testator was suffering from a weakness of mind (see above) when he or she prepared the Will, this would not be sufficient on its own to reduce the Will without circumvention also being present.
- Lesion (harm) – the terms of a Will cannot be to anyone’s harm if they were the product of the testator’s free and independently formed intention, even if that results in a disappointment to certain people. However, where facility and circumvention are proven, there could be harm caused to, for example, the beneficiary of any previous Will.
Undue influence
There may be a challenge to the Will’s validity on the grounds of undue influence. For this to be the case, it has to be shown that the Will was created by the testator under another person’s controlling influence, rather than the testator’s own free will. Where undue influence occurs there a relationship of trust between the testator and the third party, who could be for example a professional person. This trust is abused by the third party, who takes advantage of his or her position to secure a benefit in the testator’s Will. Cases of undue influence have involved those in official and powerful positions such as clergymen, doctors and lawyers.
Legal Rights are not a challenge to a Will
Quite often, we establish from clients and/or members of their family that they consider a claim for legal rights to constitute a “challenge” to the Will. This is not the case. Legal rights are automatic rights of a surviving spouse and/or children to claim a portion of the net moveable estate, whether or not there is a valid Will in place. A claimant taking up their right to claim legal rights is not considered to be contesting the Will.
To find out more about how our Private Client team can help with your Will contact us on 01224 332400 or email us here.
