When can someone challenge a Will in Scotland?

No one wants to be described as “Britain’s unluckiest Olympian”.

Imagine being a world-record holder and triple world champion.

Then imagine taking part in 2 consecutive Olympics (3 events each time), getting disqualified in 5 events and crashing out of the sixth.

That’s what happened to Scottish short-track speed skater, Elise Christie, from Livingston over the Winter Games of 2014 and 2018.

And it’s how she earned her unfortunate description.

Failing through disqualification seems especially gutting for an athlete. But disqualification for anyone based on any technicality is always going to be incredibly annoying.

No one wants their Will to be ‘disqualified’ and invalidated.

Certainly, that’s the last thing any solicitor who drafted the Will would want.

In this article, we’re going to look at three possible grounds of challenge to Wills.

Firstly, we’ll consider challenges to Wills by claiming Legal Rights. Secondly, we’ll look at claims that a Will is invalid because at the time the person made their Will they did not have legal capacity. Thirdly, we’ll look at a specific type of challenge where the Will has not been signed correctly. (There’s a “bonus” fourth ground, which we will touch on at the end).

1. Challenging the terms of a Will by claiming legal rights.

Legal rights are absolute rights which certain family members have in a deceased’s estate.

Who can claim?

• Surviving spouse or civil partner of a deceased
• The deceased’s children, and
• The deceased’s grandchildren (if their parent has died before the deceased).

Legal rights apply whether the deceased left a Will or not.

The idea is that Scots law makes it very difficult for us to completely disinherit our closest family members.

Even if the deceased left a Will making no provision for their spouse or civil partner (or their children), those family members are still entitled to make a claim against the estate. Legal rights have priority over the terms of the Will and prevent key family members from being totally disinherited.

Legal rights can only be claimed from the deceased’s moveable estate – which means basically everything that is not land or buildings.

Where the deceased left a Will leaving bequests or legacies to any of the relatives mentioned above, the relative has to choose between claiming their legal rights or accepting their entitlement in terms of the Will. They can’t choose both.

Cohabitants have no legal rights (in the sense we have discussed ‘legal rights’ here).

Legal rights ‘disqualify’ a Will (or some parts of a Will) even though the Will is still perfectly validly made.

We’re now moving on to look at grounds of challenge where you’re saying that a Will which may appear to be valid is in fact completely invalid – and worthy of complete disqualification.

2. Challenging the Will because the deceased lacked legal capacity when they made the Will.

If the person whose Will it is was mentally incapacitated when they made the Will, it won’t be valid.

Someone with advanced dementia would be in that category.

Solicitors try to guard against this scenario by always having at least one face-to-face meeting with a client who wishes to make a Will. Having a general chat with someone to make sure they understand stuff such as who is in their family, what property and assets they have to consider and what it means to make a Will usually alerts the solicitor to anything not quite right in terms of legal capacity.

But it can be more subtle than that.

Perhaps someone is standing in the background and ‘pulling the person’s strings’ so as to influence to their advantage how the estate will be divided. The legal concepts of “undue influence” and “facility and circumvention” can apply here. They do not amount to legal incapacity in its full sense but they can still form a basis of challenge to a Will which otherwise appears to be valid.

The solicitor’s ‘double-check’ is to always meet the client face-to-face and on their own if possible.

This minimises the risk that the instructions given for the Will do not truly reflect the person’s own wishes.

Influence can be exerted by a third party in many different ways.

A recent and fairly extreme example came to light incidentally through a Gloucestershire employment tribunal decision in April 2020.

The claimant, a legal secretary, sought compensation from her former employer for alleged disability discrimination.

In the course of the evidence it came out that she had somehow befriended an elderly client of the firm where she worked to the extent that she became the lady’s attorney under a power of attorney and also a beneficiary of the client’s Will.

The validity of the Will was not in issue at the hearing but the tribunal expressed ‘incredulity’ at the way the secretary had ended up in the client’s Will. According to the judge, “the claimant was prepared, perfectly freely, to admit how events subsequently unfolded without apparently appreciating the seriousness of the situation and how the situation appears to outsiders.”

The secretary’s claim failed and the judge said the tribunal had “roundly found against” the claimant.

Now we’ve covered situations where the problem is the ability of person making the will to know their own mind, let’s look at a Will that was challengeable only because of a mistake in the way it was signed.

3. Challenging the Will because it was made a long time ago.

Specifically, when it’s a Will that was made before 1995.

The law changed in 1995 and the rules regulating Will-making in Scotland were relaxed at that time.

It doesn’t mean that every Will made before 1995 can be challenged. It just means that the rules on validity of Wills were stricter before 1995, so there’s more likely to be a defect in the Will which could make it invalid.

How much of an issue is this likely to be in practice?

You might think you’re unlikely to be dealing with a Will made before 1995. But solicitors know that clients are notorious for making Wills and then leaving them for many years un-amended.

Here’s an example of a pre-1995 Will which was declared invalid. If it had been made on or after 01 August 1995, on the other hand, it would have been perfectly valid.

In this case, the Will was contested because a witness had signed the wrong name. It’s a strange case which fascinates and frightens me because I can understand how, in the circumstances, it was perfectly understandable that this mistake could happen. I would have been at risk of messing up the witness signature if the second name of the person making the Will was, for example, Brasch or Brush or Brasher.

Mrs Williamson signed her will on 11 April 1988. Two witnesses were required. The witnesses were a Mr and Mrs Wilson. Mr Wilson was a solicitor – David C.R. Wilson.

Unfortunately, when Mr Wilson came to sign, he confused his own second name with that of Mrs Williamson and signed ‘D C R Williamson’.

As is common in such situations, the mistake was not discovered until after Mrs Williamson’s death.

At that time, Mrs Williamson’s son sought to annul the Will because it was not properly witnessed. The Court of Session held that there had to be valid subscriptions of the Will-maker and two witnesses. On that approach, the witness had failed to add his normal signature. The Will failed.

The new law, post-1995, would produce a different result.

The Will would be valid from the moment that Mrs Williamson signed it. Having one proper witness signature, in addition, would help by making the Will ‘prove itself’ but it would not be essential for the Will to be valid.

So Wills made before 01 August 1995 may be more susceptible to challenge. We can add that – yes, rather unlikely – example to the more frequent contesting grounds provided by: legal rights of close relatives; and incapacity of the deceased at the time the Will was made.

We will now quickly look at a ‘bonus’ basis of claim but it is only available where there is no Will.

(4. A ground of challenge for cohabitees where there is no Will).

Section 29 of The Family Law (Scotland) Act 2006 applies to a surviving cohabitant domiciled in Scotland where their cohabitant dies without leaving a Will.

The Sheriff can make an order for payment or transfer of capital to the survivor. The survivor may not receive more than he or she would have received – under the law of intestate succession – if they were married to the deceased.

The claim has to be made within 6 months of the death of the deceased.

A court action must be raised within that period if matters cannot be agreed. The 6-month period cannot be extended. If a court action is not raised before the deadline, the right to make a Section 29 claim is lost.

Many such claims are likely to settle before litigation is needed but 6 months is a short amount of time, in practice. If you or someone you know might have a claim of this type, it is important to get legal advice as a matter of urgency.

Now let’s have a summary of what we’ve covered in this article.

Summary

Whether you’re competing in short-track speed-skating or making a Will, the last thing you want is for your ‘performance’ to be disqualified.

Getting the wishes you express in your Will to the stage of full implementation after your death may be on ‘thin ice’ where

• you have close family members who can choose between accepting their lot from your Will or claiming legal rights,
• you lack legal capacity to make a Will, or
• you made your Will before 01 August 1995 and it does not meet the more onerous requirements for validity compared to Wills made after that date.

For the partner of a deceased cohabitee who left no Will, there may be scope to challenge the division of the deceased’s estate which would otherwise happen. But you have to act quickly. And you will almost certainly require help from a solicitor if you are going to get anywhere with a “Section 29” claim.

How we can help

We hope this article has given you a bit of insight to when someone can challenge a Will in Scotland.

Remember that it’s always possible to review your Will and, especially if your current Will was made before 1995, it is perhaps more important than ever to get that attended to.

We would be glad to help you. All initial enquiries are at no cost and without obligation to take things to the stage of full instructions to us to proceed.

In many cases it remains possible for us to go through the whole process from getting first instructions to signing the Will with you, despite not being able to meet with you in person.

You can phone us on 01343 544077 or you can send us a Free Online Enquiry via this website.