Challenging A Will In Scotland: What You Need To Know

In Scotland, a will can be contested in court, but it must be supported by clear evidence that the will is invalid. While anyone can contest a will, it should be done with good reason, as the process can be costly and stressful for families. The validity of a will can be challenged on the grounds of the will being improperly executed, the lack of testamentary capacity of the testator, undue influence, or fraud. In Scotland, it is difficult to completely disinherit close family members, and they may be entitled to make a claim against the estate.

Legal rights of close relatives

In Scotland, legal rights are a unique feature of Scots Law, protecting certain family members from being disinherited. These laws allow close relatives, including a spouse, civil partner, and children of the deceased, to claim a portion of their estate. This applies regardless of whether the deceased left a will or died intestate. It is important to note that legal rights do not include heritable estate, such as land and buildings, and only apply to the worldwide net moveable estate, including cash, shareholdings, personal effects, and furniture.

Adopted children have the same legal rights as biological children to the estate of their deceased adoptive parent. However, they cannot make a legal rights claim against their biological parent's estate. Step-children, on the other hand, do not have any legal right to their step-parent's estate, and there are no proposals to change this. Additionally, cohabitees do not have an automatic right to a share of their deceased cohabitant's estate, although they may, under certain circumstances, take legal action through the courts.

It is important to understand that legal rights in Scotland are automatic and do not require application to the Sheriff Court. This means that a person can make a claim against the estate for up to 20 years as long as their legal rights have not been formally discharged in writing. If a person is entitled under the will and their legal rights, they must choose to claim one or the other, not both.

While it is challenging to successfully overturn a will in Scotland, there are grounds for doing so, including the legal rights of close relatives and the incapacity of the deceased when the will was made. Additionally, wills made before August 1, 1995, may be more susceptible to challenge due to changes in the law that relaxed the rules regulating will-making in Scotland.

Incapacity of the deceased

Scots Law operates on the basis that legal rights are an automatic right, and there is no requirement to apply to the Sheriff Court. This means that, as long as a person's legal rights have not been formally discharged in writing, a person can make a claim against the estate for up to 20 years.

It is a fundamental principle enshrined in Scottish law that, when making a will, a testator should be able to leave their estate to whoever they wish. However, wills can be contested on the grounds of the incapacity of the deceased at the time the will was made.

The Adults with Incapacity (Scotland) Act 2000 defines Adults with Incapacity (AWI) as those aged 16 or over who lack the capacity to take some or all decisions for themselves because of a mental disorder or an inability to communicate. In 2018, the Scottish government consulted on proposals to reform the Adults with Incapacity legislation. This included promoting the use of supported decision-making to maximise the autonomy and exercise of legal capacity for persons with impaired capacity, in line with the requirements of the United Nations Convention on the Rights of Persons with Disabilities.

In 2024, the Scottish government consulted again on proposals to reform the Adults with Incapacity legislation. This included developing a new scheme for the supervision of guardians to provide a robust risk-based approach, providing more education and support to all parties using the legislation, and developing guidance to improve the use of powers of attorney to ensure the will and preferences of the granter are adhered to.

Undue influence and pressure

Scots Law holds that a testator should be able to leave their estate to whomever they wish. It is, therefore, very difficult to successfully overturn a will. However, undue influence and pressure are grounds for contesting a will in Scotland.

In Scotland, it may not be necessary to apply to the court to overturn a will unless there is evidence to support a challenge to its formal validity. The question of 'reasonableness' is irrelevant when it comes to legal rights, as long as the testator was domiciled in Scotland at the time of their death. Legal rights are an automatic right, and there is no requirement to apply to the Sheriff Court.

Wills made before August 1, 1995, may be more susceptible to challenge, as the law changed in 1995 and the rules regulating will-making in Scotland were relaxed. In addition, Scots Law makes it difficult to completely disinherit close family members, and adopted children have the same legal rights as biological children to the estate of their deceased parent.

The Adult Support and Protection (Scotland) Act 2007 seeks to provide additional support to adults at risk of harm due to undue pressure or influence. This may include adults who are being influenced by someone they trust or depend on, or someone who is preventing them from protecting themselves effectively.

Poorly written will

In Scots Law, it is a fundamental principle that a testator should be able to leave their estate to whoever they wish. However, it is possible for a will to be contested or challenged. For instance, wills made before 1995 may be more susceptible to challenge, as the law changed in 1995 and the rules regulating will-making in Scotland were relaxed.

One of the grounds for contesting a will in Scotland is the legal rights of close relatives. Spouses and children have an automatic entitlement to inherit part of the testator's movable estate, regardless of whether there is a will. This is unlike English law, where there are no such automatic safeguards for spouses and children. In Scotland, if a will does not make reasonable financial provision for a spouse, civil partner, or child, they may be able to argue that the will is invalid.

Another ground for contesting a will is the incapacity of the deceased at the time the will was made. If there are doubts about whether someone had the mental capacity to make a valid will, it is best to consult a lawyer. A will must be made by an individual who is of sound mind and over 18 years old to be valid.

In addition, a will may be contested if it is poorly written or drafted. Homemade DIY wills are often poorly drafted, contain mistakes, or are incorrectly executed, leading to invalidation. A will must be properly witnessed and signed to be considered valid. In Scotland, only one witness is required, but the testator must sign every page of the will. Witnesses must provide full identification, including their address and occupation.

Lack of testamentary capacity

In Scotland, it is notoriously difficult to successfully overturn a will. This is because there is a fundamental principle in Scots law that, when making a will, a testator should be able to leave their estate to whoever they wish. Testamentary capacity is generally assumed, and the courts will require robust evidence to be satisfied to the contrary.

However, a will can be challenged on the grounds of lack of testamentary capacity. This is a common basis for contesting a will, especially for wills made before 1995, when the law changed and the rules regulating will-making in Scotland were relaxed.

The test for capacity is found in Section 1(6) of the Adults with Incapacity (Scotland) Act 2000. The Act defines an "adult" as someone who has attained the age of 16 years and includes a person who:

> [...] is unable by reason of mental disorder or of inability to communicate because of physical disability to retain the memory of decisions, as mentioned in any provision of this Act, but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and "incapacity" shall be construed accordingly.

The test for testamentary capacity is based on case law and dates back to the 1800s and the case of Banks v Goodfellow [1870]. The test was clarified in Walker v Badmin [2015], which confirmed that the common-law test in Banks v Goodfellow remains good law. According to this test, a testator must:

• Be capable of understanding the nature of their actions (though actual understanding is not required).
• Not have a disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

The 'golden rule' is a rule of good practice for practitioners and is widely approved by the courts as having the potential to reduce the risk of a claim for lack of testamentary capacity. However, it is not a rule of law, and the failure to observe it does not automatically invalidate a will.

It is important to remember that a testator will be presumed to have the requisite testamentary capacity if the will appears on its face to be rational and contains no irregularities. The burden of proof rests on the person asserting the lack of capacity, and challenging a will on these grounds can be difficult, especially if the golden rule has been followed.

Frequently asked questions