Challenging a Will

There are a number of requirements in order for a document to be treated as a Will:

• Firstly, the individual creating the Will must be legally and mentally capable. In Scotland, this means that the person must be at least 12 years old and be of sound mind at the time that the Will was written. They must also sign the document willingly, understanding what they are signing and the consequence of doing so.
• Secondly, the document must demonstrate a clear intention for the individual’s assets to be disposed of, in the manner set out in the document, on his or her death.
• Finally, the person must sign the document at the foot of every page.

A Will can be challenged on one or more of the following grounds:

• The individual was not legally and/or mentally capable of preparing a Will.
• The individual did not properly understand what he or she was signing.
• The Will was not properly signed.
• The individual was unduly influenced by someone else when preparing the Will.
• The individual was easily influenced, someone has taken advantage of this when the individual prepared the Will and this has caused disadvantage to others (usually the individual’s family members).
• The Will has been prepared fraudulently or has been forged.
• The Will was drafted on the individual’s instructions and does not accurately reflect what was instructed.
• The Will has prepared before the birth of a child of the individual and does not make provision for that child.

The first step is to contact an independent Solicitor to discuss the terms of the Will and the circumstances more generally. They can then advise you on whether a challenge is likely to be successful and the next steps to be taken in order to start the process.

Under Scots Law, the surviving spouse or civil partner and the children of the deceased have certain rights in the deceased’s estate. These are called Legal Rights. These rights apply regardless of whether the deceased left a Will.

Legal Rights claims apply to what is termed ‘moveable’ estate. This is more or less everything that the deceased owned, apart from land and buildings.

The Legal Rights of a surviving spouse or civil partner are to one-half of the value of the moveable estate if there are no surviving children. The right reduces to a one-third share if there are surviving children.

Similarly, the Legal Rights of surviving children are to one-half of the value of the moveable estate, divided equally among all of the children, if there is no surviving spouse or civil partner. If there is a surviving spouse or civil partner, the right reduces to a one-third share, again divided equally among all of the children.

Yes. Under Scots Law, individuals have the right to leave their estate to whoever they wish. However, your children will always be able to claim Legal Rights (as described in ‘What are Legal Rights?’ above) in your estate, regardless of what is written in your Will.

The legal requirements for a valid Will are given under ‘What counts as a Will?’ above.

Your Will should be prepared by a qualified Solicitor to ensure that it is valid. If you have prepared your own Will, it is advisable to have this reviewed by a Solicitor to ensure that it fulfils all of the necessary criteria to be valid and that it will not cause any unforeseen difficulties on your death.

The length of time contesting a Will takes depends upon the complexity of the circumstances. At Thorntons, we will let you know the likely timescales at the start and keep you informed of any possible changes as the matter progresses.

The costs of challenging a Will can vary, depending on the circumstances of the case. We are always clear to clients about the potential costs of any option and offer a range of payment options.

We may be able to offer clients a fixed-price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and, if necessary, court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs.

We will set out our fees and likely extra costs at the start and keep you informed of any possible changes as your case progresses.