The death of a loved one is an exceptionally difficult time. Even in such cases where the deceased has made plans and left a Will, there are still potential pitfalls to the administration process. Challenging or contesting a Will in Scotland adds an additional burden and can be a very stressful time for families and creates a further grievance during a period of loss. Whilst the importance of drafting a proper Will with a solicitor is the best way to safeguard your wishes and best interests of your loved ones, the unfortunate scenario can arise in which testamentary wishes are brought into question.
Commonly, disputes can occur due to a poorly written Will or where there is a disappointed beneficiary who appears to have been disinherited by their loved one. Concerns can be raised regarding the timing of when a testator has made changes to their Will or their mental capacity at the time of drafting. Most recently, an Edinburgh Sheriff Court decision has highlighted a case of ‘Facility and Circumvention’. In such cases, even though the testator has mental capacity, undue influence and pressure towards the individual can result in the Will being deemed invalid.
The case featured an Edinburgh man who was the primary beneficiary of his late aunt’s Will prior to the deceased making a new Will in 2019 in favour of her brother . The Will was successfully challenged by the nephew on the grounds of testamentary capacity, facility and circumvention, and undue influence. In his decision Sheriff Dickson noted the vast difference in the deceased’s 2019 Will which was prepared by the deceased’s brother (who was appointed as the sole executor and beneficiary of the estate in that will) and the deceased’s 2018 Will which was prepared by her solicitor. Whilst the deceased was not held to have a complete lack of testamentary capacity, her mind was found to be so ‘weak or pliable’ that she was unlikely to be able to resist the undue pressure of her brother. For a testator to have been held “unduly influenced”, a relationship of trust and confidence has to have been abused. In this case the lady’s brother had moved into her home and the surrounding family spoke about her fear of her brother. . You can read more on this recent decision here.
This seems to be a somewhat extreme case which resulted in favour of the disinherited beneficiary but serves as an important reminder of the importance of a professionally prepared Will to ensure a testator’s interest are protected and their wishes properly stated. Doing so, mitigates the risk of a Will being challenged. In this case (as the testator would be the lawyer’s client and would have met the individual without other family members being present), the possibility of a testator putting a Will in place that was the result of unreasonable influence from others would also be further minimised.
If you are looking to make any changes to your Will, having a qualified solicitor undertake the work ensures that if such changes are controversial, the terms are both unambiguous and recorded. It ensures you get proper advice on your wishes and how best to achieve them and makes sure your interests are protected.
If someone is challenging a will, the onus is always on them to prove something happened (or didn’t happen) which means the will should be struck down. A properly executed Will with a professional record of your instructions ensures that this onus is even tougher to meet.
When looking to plan for your succession and safeguard your loved ones from any acrimonious or challenging circumstances when you are no longer here, please contact a member of our Private Client team on 03330 430150.
