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Challenging the Validity of a Will

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Dealing with the death of a relative can be a difficult and emotional time, but even more so if a dispute arises over the terms of a Will. There are two grounds on which a Will can be challenged in Scotland:

1. Formal Validity 

Formal validity deals with the procedural requirements that must be abided by in order to ensure that the Will is a valid testamentary document. For example, a Will should be in writing and it should be signed at the bottom of every page. Surprisingly, it does not need to be witnessed to be valid, but it is much better practice to have a Will witnessed to avoid some procedural steps that have to be taken to implement a Will that is not witnessed. The formal validity of a Will is governed by The Requirements of Writing (Scotland) Act 1995.

2. Essential Validity

The essential validity of a Will takes into account the capacity of the testator and whether any external pressures were applied to influence the content of the Will. There are three sub-areas which are relevant to the essential validity of the Will. If one or more of these can be established, then there may be grounds to challenge the Will and raise an action for the reduction of the Will.

The three sub-areas are as follows:-

Incapacity

This is one of the most common grounds for challenging the validity of a Will. It is necessary for a testator to be of sound mind and capable of comprehending the nature and effect of the act of making a Will. This is predominately a fact-based test and will take into the account the circumstances at the time the Will was instructed.

If the testator had instructed solicitors to draft the Will, then in terms of a solicitor’s legal obligations and duty of care to the testator, they would have had to have been satisfied that the testator had capacity at the time of providing instructions and thereafter signing the Will.

It is worth noting that an individual can make a valid Will even when it has been proven that they suffered from a mental illness. It is well established in Scots law that a testator may have lucid intervals and, if the will was created during such an interval, it will be deemed to be valid.

Facility and Circumvention

Facility in a testator is less than insanity/incapacity and is where the testator suffers from a weakness of mind, whether as a result of physical or mental illness or approaching senility, and can easily be imposed upon. Facility on its own is not a ground for seeking reduction of a Will and it must be coupled with circumvention by interested parties. The test for determining whether facility and circumvention applies is ‘whether the defender, taking advantage of the testator’s weakness and facility, procured the deed by fraud and circumvention’. Again, this is a fact-based test. The issue regarding lucid periods still applies, as does a solicitor’s duty, if the Will was prepared by a solicitor.

Undue Influence

This test differs from facility and circumvention in that you do not require to establish a general state of weakness of mind. All that is necessary to show is that there is a position of influence on the part of the defender which has been used to obtain advantages in the testator’s will. Again, this is a fact-based test and you would require to show that the testator did not know what he was doing at the time of instructing the Will, that they had effectively been manipulated into creating a new Will. The same issues apply to this test as they do to the above.

Prior Rights and Legal Rights

Under Scottish law, the Law of Succession allows entitled parties to claim “prior rights” and “legal rights” to an estate, as opposed to accepting the distribution allocated under the terms of a Will. If you qualify to claim these rights, then you can do so without formally challenging the Will. Further information on Prior Rights and Legal Rights can be found on our website.

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