Once a will is made, the right to change it is important. Circumstances can change at any point, resulting in the testator (will maker) deciding to update the distribution of their assets and belongings. On occasion, these changes can be made very close to death, and for those left behind, it can be hard to understand a change of intention.

It’s possible that not all family and friends are completely satisfied with the testator’s decisions laid out within a will. Some may find themselves left with less than they had hoped, which can cause an array of negative emotions, and possible threats to contest the will. 

In order to legally contest a will in Scotland, it must be done so in court with the provision of clear evidence that the will is not valid: supposition and suspicion are not enough.

What are the grounds to contest a will?

Certain criteria must be met for a will to be legally valid. This includes the will being in writing, signed by the testator on every page, and signed by a witness of sound mind. If a will is made without following these rules or is believed to have been written fraudulently, it is not legally valid and therefore can be contested. There are three other grounds for setting a will aside in Scotland.

Testamentary incapacity

A will must be made by a person who is capable of understanding that they are making a will, the effects of the will, the extent of the property being disposed of and the claims of those who might expect or be expected to provide for in the will. If it can be proven that the testator lacked proper understanding of any aspect of the will, then there are grounds to contest it. This capacity to understand has nothing to do with their actual understanding, nor is it a test of memory or intelligence.

Undue influence

A will may be set aside if the person who made the will was unduly influenced. This means that there has been an abuse of a relationship of trust and confidence. Persuasion alone is insufficient, and it is irrelevant whether the person exercising the influence was doing so for their own gain. There must be evidence of a relationship in which one party was capable of exerting a strong influence over the testator, such as a carer, solicitor, or family member, and evidence of the pressure that overpowered the testator’s freedom.

Facility and circumvention

If the testator was deemed to be weak at the time of writing the will, due to ill health, old age, or simply by their nature, it is possible that they were pressured to make a new will by the circumvention or fraud of another. Due to their weak state, the testator may have been unable to resist this improper pressure, resulting in making changes to the will that they did not wish to make themselves.

What are legal rights in Scotland?

Scottish legal rights broadly give a surviving spouse or civil partner a guaranteed share of the testator’s financial assets, regardless of what the will sets out. This is not contesting the will, as the rest of it remains in place, but instead over-writes it with the legal rights.

Children can also insist on getting their portion of the estate, known as legitim, if they are not mentioned as beneficiaries. If the children have been mentioned as beneficiaries, they can choose to receive legitim if their stated bequest is less than the legal rights would pay them, but they can not gain both.

Contesting a will: Deirdre Romanes

Changing a will is a common procedure, with many testators making changes close to their death. Not all of these cases will be contested and even fewer will result in the will being overturned. A case in the Scots Courts from 2008 highlights this. While a cautionary tale for those seeking to challenge a will, the case also demonstrates how the Scots courts respect the legally valid intentions of the deceased.

Deirdre Romanes died of cancer in 2010. She had made a will in 2008, leaving much of her estate to her younger sister, Elizabeth. But two weeks before she died, she changed her will in order to leave a substantial legacy to a Trust in order to refinance a company she built up and helped run.

Elizabeth contested the will on the grounds that her sister was in so much pain, causing her physical and mental exhaustion, she couldn’t have understood what she was doing (she lacked testamentary capacity), and even if she did understand, she wouldn’t have been able to resist pressure from those around her to change it (she was subjected to undue influence and facility and circumvention).

The court found that Deirdre had full capacity - meaning she understood the assets she had at her disposal and the obligations were given consideration - and she wasn’t unduly pressured by those around her.

You can read the full judgement from the case here.

Contesting a will can be stressful as it usually happens shortly after the loss of a loved one and can cause a certain amount of unrest within the family.

Our knowledgeable team can guide you through the process, which begins with assessing whether or not you have any legal grounds on which to do so.