Challenging a Will - FAQs

The following information has been prepared based on questions which our Dispute Resolution and Litigation department are regularly asked in connection with potential Will challenges. Whilst we have sought to provide answers to these questions below, we would recommend that you get in touch with us directly so that we can provide tailored advice based on the specific circumstances of your own matter.  

I have been removed from my parent’s Will. Can I challenge their Will?

There are various grounds in which you can you challenge a Will, namely (a) incapacity (b) undue influence (c) fraud (d) facility and circumvention (e) lack of formal validity. We are happy to speak to you to get an understanding of the specific circumstances you find yourself in and to see if one of the grounds may apply.

As an alternative you may be able to claim your ‘Legal Rights.’ Legal Rights is unique to Scotland and prevents parent’s disinheriting their children. In short, regardless of the terms of your parent’s will, as your parent’s child, you may be entitled to a fixed share of their net moveable estate. This may be a preferable course of action in some circumstances and one which we could explore with you.

There is no date on a relative’s Will. Can I challenge the Will on this basis?

In Scotland, for a Will to be considered ‘formally valid’ it requires to be signed on every page by the person putting the Will in place (‘the Testator’) and their signature requires to be witnessed. Where a Will does not satisfy these requirements it can be challenged on the basis that it is not formally valid.

There is no requirement in Scotland that a Will has to include the date in which it was signed. All that is required is that a Will is signed on each page and witnessed. There may be other reasons in which you wish to challenge the Will, however the fact there is no date on a Will would likely be insufficient in itself.

Can I challenge the Will of a relative who was suffering from dementia when they signed their Will?

You can look to challenge a Will on the grounds of capacity, i.e. that the individual putting the will in place was not of sound mind when they executed their will. However, it is by no means clear cut. There is a general presumption in Scots law that adults have capacity. With this in mind, it would be for you to satisfy the court that the individual did not have the necessary capacity to draft a Will at the relevant time.  It is of note that suffering from dementia is not itself determinative of someone’s capacity and further investigations would have to be undertaken.

My relative was forced into signing a Will that they did not want. What steps can I take to challenge the Will?

If you have reason to believe someone was forced into signing a Will you could potentially challenge the Will on the basis of facility and circumvention and/or undue influence. If successful, the Will may be deemed voidable, i.e. it may be set aside by the court.

With, ‘facility and circumvention’, you would have to demonstrate to the court that (1) the Testator was facile (i.e. suffered from a mental weakness due to for example their age or illness) or were easily imposed upon (2) that there was some sort of circumvention (3) such circumvention has resulted in you suffering a loss (for example, if you were written out of the will you are looking to challenge.)

In terms ‘undue influence’, you would be looking to satisfy the court that a third party acting in a position of trust and responsibility had exerted influence over the Testator. Thereafter you would have to show that as a result of such influence, the Testator’s Will was drafted in a certain way (usually in favour of that third party).

What type of action would be required in challenging someone’s Will?

In Scotland, you would require to raise an action of ‘reduction’ in either the Sheriff Court or Court of Session. If successful, the will would be reduced, i.e. treated as if it did not exist.

I am thinking about challenging a relative’s Will. What type of information/evidence would I need?

It would very much depend on the specific circumstances of the case and the grounds in which you would be looking challenge a Will. For example, one of the grounds of challenge Pricilla Presley has recently made in challenging her daughter’s living trust is that she disputes one of the signatures in the document is her daughter’s own signature. In this type of situation, you may want to consider getting an expert to look at the disputed signature against the Testator’s handwriting. Equally, if you have concerns regarding a Testator’s health you may wish to try and obtain medical evidence.

Does it make a difference if the Will I am looking to challenge was drafted by a solicitor?

The fact that a Will was prepared by a solicitor does not prevent you from raising an action to reduce a Will. However, solicitors owe a general duty to draft a Will with reasonable skill and care. Reasonable skill and care will typically include meeting with the person to understand what they wish their Will to include, and speaking with them to ensure that they are not being influenced by another to execute a Will and that they have the capacity to execute a Will. Bearing this in mind the involvement of a solicitor may make a challenge on certain grounds such as capacity and undue influence somewhat difficult (though not impossible).

What would happen if I was successful in an action to reduce a Will?

If you were successful in an action of reduction and a Will was reduced, it would be treated as if it never existed. It may be the case that an earlier will signed by the Testator could be relied upon and the Testator’s estate distributed in accordance with that Will. However, if there is no earlier Will, the estate will be treated as an intestate estate. What this would mean is that the Testator’s estate would be distributed in accordance with rules set out in the Succession Scotland Act 1964.

I am looking to challenge a Will; however, I know any action would be defended. What are the prospects of being successful in raising an action to reduce a Will?

Due to the nature of these type of actions, it is not possible to comment on prospects of success. It is very much fact specific.

What we can (and typically do) is work with you to understand the full circumstances of the matter to ascertain whether we consider there to be potential grounds of challenge. We can also advise of the risks and potential benefits of taking such action so that you can make an informed decision.

If you were to raise an action to challenge a Will and it was defended, it would very much depend on the evidence each party put before the court, and which evidence the court preferred. For example, in relation to the challenge made by Pricilla Presley in connection with her daughter’s living trust, there are already articles surfacing in which purported friends of Lisa Marie claim that the 2016 Amendment set out her wishes. With that, they claim that Lisa Marie and Pricilla had fallen out around that time and that whilst they had reconciled, she maintained that she wanted two of her children to be her trustees (as opposed to her mother). If these claims were made in court, it would be in the courts hands as to whether to accept these statements or whether to prefer any evidence offered by Pricilla.

I am appointed as executor under a relative’s Will. I believe that there is a possibility someone will challenge the relative’s Will. Am I at risk of distributing the estate in accordance with the Will?

In short, yes. If you pay out the estate under the Will and then an action is raised and the Will is reduced, you could potentially be held personally liable. The extent of that risk would depend on multiple factors including the steps you had taken to satisfy yourself that you could proceed to distribute the estate.

Given the possibility of incurring personal liability, it is best to know about any potential challenge at the earliest opportunity and ahead of any distribution. It is also beneficial to get solicitors involved at an early stage. The reason for this is that we can look to take measures such as lodging a ‘caveat’ with the court, so that we would be notified of any action to reduce the Will being lodged with the court.