Dianne Paterson: To prevent challenge, make your will watertight

It is usually assumed that when someone dies, their next of kin, or '˜nearest and dearest' will know where their will is held and the terms of that will. This is not always the case. While the deceased's solicitor usually holds the original will in '˜safe custody', under lock and key, it can sometimes be difficult for family members to track down a copy and find out what it says.

Dianne Paterson is a Partner in Russel + Aitken LLP

Some assume that after the funeral, family members and interested friends will gather together to attend a grand reading of the will by the family solicitor to confirm the details of the will and to hear who will benefit. Such a scene tends to belong in fiction, and a reading of the will very rarely occurs.

Similarly, if someone wishes to challenge the will and contest its terms, it tends not to happen at any grand reading of a will, but more likely through correspondence with solicitors, who will provide advice on the prospects of a successful challenge.

In Scots law, it is exceedingly difficult to challenge a will. This comes from the underlying principle that a person is entitled to leave their estate to whoever they wish (subject to any legal rights). Scottish courts are reluctant to uphold any such challenge because of this, unless, of course, there is good evidence to support this.

The terms of a will may not suit certain family members or friends, but that is not reason enough to contest its terms. The validity of a will can only be challenged if there are sufficient grounds to do so.

The main grounds for challenging a will are:

Incapacity: It is important that the deceased, when instructing their will, understood its nature and effect and was of sound mind when doing so. If there is any doubt that the deceased had the necessary capacity when instructing and signing their will, it is possible it could be challenged through the courts.

Undue influence: A person must be free to say what they wish in a will and not feel under pressure to say something else. If there is suspicion a person has made a will as a result of significant pressure from another, and if it can be proved they were placed under undue influence when writing their will, it’s possible such a will could be challenged in court. The test would be whether they would have made that will had such an influence not been exerted on them.

Fraud: If you can prove a will has been forged, or that it is fraudulent, it is likely that such a will could be challenged. If for example, a signature has been forged on the will or fraudulent information given to the person making the will, which has resulted in changes, this is likely to be a ground for challenging the will.

Facility and circumvention: If the deceased had capacity and had been of sound mind when instructing the will, but had been suffering from a mental weakness, such as old age, or ill health, and that vulnerability had been exploited by a particular person through deception, then, similar to the ground of undue influence, the courts might consider this a ground for challenge.

The procedure for challenging the validity of a will and seeking to have it overturned, would involve an application to the court to have the will formally ‘reduced’. If any grounds for challenging a will could be successfully proven in court, the court would issue an order ‘reducing’ the will and reviving any earlier will, if any such will existed. Without a previous will, the estate would be divided in accordance with Scots law.

The aim of the courts, at all times, is to attempt to uphold the last wishes of the deceased, and not the wishes of the family members or friends who may have challenged the will.

It follows that the way to ensure that your last wishes will be upheld, is to understand the grounds on which a will may successfully be challenged, and make sure you consult a Scottish solicitor, to prepare a watertight will which no one can overturn.

Dianne Paterson is a partner in 
Russel + Aitken LLP