The stakes can be high when challenging a will - Dylan Mitchell

How do you challenge a will after someone has passed away? Hopefully you will never find yourself having to ask this question. Sadly, a number of our clients do.

It is no surprise that as people get older, their attention naturally turns to their will. Many seek to make changes to an existing will, or even put one in place for the first time. However, as we get older, we are more likely to experience complications to our physical and mental health. According to the Alzheimer’s Society, there are around 900,000 people with dementia in the UK and this is projected to rise to more than 1 million by 2025. Whatever the complication, generally people will find themselves in a vulnerable position and in need of support later in life.

We have seen a steady increase in contentious cases concerning challenges to wills. Concerns about a loved one being taken advantage of or even whether they had capacity to actually execute the will are on the rise.

Thankfully, if that is the case, a will can be challenged in a number of ways. Whether there is doubt that an individual was of sound mind when they signed the will; or whether there are fears that a loved one has been taken advantage of or had pressure applied to them at a time where they may have been vulnerable, a court can be asked to rule such a will invalid.

Dylan Mitchell is a Solicitor, Balfour+Manson

Roddy MacLeod, an Advocate at Terra Firma Chambers, has said that the issue of testamentary capacity is complex.

Cases often involve huge volumes of medical records and input from specialist medical professions to determine retrospectively whether the testator had capacity. And cases of this type can take their emotional toll on those involved - and often the stakes are high.

At Balfour+Manson, we are experienced in handling these types of cases. In a recent case, our client, who was due to inherit under an earlier will, raised court action to challenge a subsequent will on the grounds that the testator did not have capacity (and if she did, her true wishes had been circumvented by the undue influence of another).

The will which was subject to the court challenge had been prepared by the testator’s relative only one month prior to the testator’s passing, at a time when the testator was experiencing significant medical challenges. Unlike the earlier will, which had been prepared by a solicitor, the homemade will sought to leave almost the entire estate to the relative, cutting out our client.

Following a nine-day hearing at Edinburgh Sheriff Court, the court ruled that the later will was void, as the deceased did not have the requisite capacity. The court went further and found that the testator was vulnerable, had been unduly influenced and that their wishes had been circumvented as a result of their health.

In the last 70 years there have been very few reported cases of challenges to wills on the basis of testamentary capacity. Successful challenges are even rarer. Following this very recent decision in favour of our client, the Dispute Resolution team at Balfour+Manson have achieved another.

Dylan Mitchell is a Solicitor, Balfour+Manson