When can someone contest a Will in Scotland

Being referred to as “Britain’s unluckiest Olympian” is something that no one desires.

Imagine holding three world championships and a world record. Imagine competing in three events throughout the course of two consecutive Olympics, being disqualified from five of them, and failing to advance from the sixth. Elise Christie, a Scottish short-track speed skater from Livingston, experienced such during the Winter Games in 2014 and 2018.

That’s how she got the terrible nickname.

For an athlete, losing due to disqualification seems extremely heartbreaking. However, disqualification due to a technicality will always be extremely frustrating for everyone.

Nobody wants their will to be “disqualified” and declared invalid

That’s undoubtedly the last thing the Will’s lawyer would want.

We’ll examine three potential arguments against Wills in this post.

We’ll start by thinking about objections to wills raised by asserting legal rights. Second, we’ll look at arguments that a will is invalid because the maker lacked mental ability at the time the will was formed. Lastly, we’ll examine a particular form of challenge where the Will was not properly signed. 

#1. Assert legal rights and contest a will in Scotland

Legal rights are unassailable claims made on an estate by specific family members.

Who are eligible to claim?

• Spouse or civil partner who is still married to a deceased person
• the children of the deceased, and
• If their father dies before the deceased, the deceased’s grandkids.

Whether or not a deceased person leaves a Will, legal rights still stand.

The point is that it is exceedingly difficult for us to entirely disinherit our closest relatives under Scottish law.

These surviving family members are still eligible to file a claim against the estate, even if the deceased’s will made no provisions for their spouse, civil partner, or children. Key family members are prevented from being completely disinherited by law, which takes precedence over the contents of the will.

Only the deceased’s moveable estate—basically everything that is not property or a building—can be used to assert legal claims.

A relative must decide whether to assert their legal rights or accept their entitlement under the terms of the Will when the deceased person left inheritances or legacies to any of the aforementioned relatives. They are unable to select both.

In the notion that we have stated here, cohabitants don’t have any legal rights.

Legal rights can ‘disqualify’ a will or some provisions of a will, even while the will itself is still entirely legitimate.

Now let’s move on to the grounds for challenge, where you claim that a Will, despite its appearance to be lawful, is actually wholly invalid and therefore worthy of total disqualification.

#2. Disputing the Will on the grounds that the decedent is incapacity when they made it

It won’t be valid if the person making the Will was not capable of understanding at the time they signed it.

That would include someone who has advanced Dementia.

By always scheduling at least one face-to-face meeting with a client who wants to form a will, solicitors aim to prevent this scenario from happening. The solicitor is usually aware of any potential issues with legal capacity by having a broad conversation with the person to ensure that they understand topics like who is in their family, what assets and property they need to consider, and what it means to form a Will.

However, it can be deeper than that.

Perhaps someone is ‘pulling the person’s strings’ in the background to influence the distribution of the inheritance in their favour. Legal terms like “undue influence” and “facility and circumvention” may be relevant in this situation. While they may not constitute legal incapacity in the strictest sense, they can still serve as a ground for disputing a Will that otherwise seems to be legitimate.

The lawyer should always meet the client in-person, preferably alone, as a “double-check.”

This lessens the possibility that the instructions provided for the Will do not accurately reflect the individual’s preferences.

A third party can exercise influence in a variety of ways.

A Gloucestershire labour tribunal ruling from April 2020 revealed a recent and somewhat dramatic example by accident.

The legal secretary who filed the claim demanded payment from her previous employer for claimed handicap discrimination.

During the trial, it was revealed that she had become close friends with an elderly client of the business where she worked, to the point that she was appointed the client’s attorney under a power of attorney and was also named a beneficiary of the client’s Will.

Although the tribunal expressed “incredulity” at how the secretary came up in the client’s Will, the legitimacy of the Will was not under question at the hearing. The judge stated that “the claimant was ready, perfectly freely, to admit how events eventually unfolded without apparently appreciating the seriousness of the situation and how the situation appears to others.”

The judge stated that the panel had “roundly found against” the claimant after the secretary’s claim was rejected.

Let’s look at a will that was only contestable due to an error in the way it was signed now that we’ve examined cases where the issue is the ability of the individual making the will to know their own thoughts.

#3. Disputing the Will due to the fact that it was created in the past

In particular, if the Will was drafted prior to 1995.

The law was modified in 1995, and at that time, Scotland’s will-writing regulations were loosened.

Not every Will drafted prior to 1995 is subject to dispute, however. Simply put, it indicates that since there were stronger requirements for will validity before to 1995, there is a higher likelihood that the will has a flaw that might declare it invalid.

How big of a problem is this going to be in real life?

You may believe it is unlikely that you are dealing with a Will that was created before 1995. However, lawyers are aware that their clients have a history of creating wills and then failing to update them for many years.

The following is an illustration of a pre-1995 Will that was ruled invalid. Contrarily, it would have been completely legitimate if it had been made on or after August 1, 1995.

Due to a witness’s incorrect signature, the Will in this case was disputed. It’s a strange instance that fascinates and terrifies me since I can see how, given the situation, it was completely possible that this error might occur. If, for instance, the individual writing the Will had the second name Brasch, Brush, or Brasher, I would have run the risk of mucking up the witness signature.

The will was penned by Mrs. Williamson on April 11th, 1988. We needed two witnesses. Wilsons, Mr. and Mrs., were the witnesses. David C.R. Wilson, Mr. Wilson, was a lawyer.

However, Mr. Wilson signed as “D C R Williamson” since he mistook his own last name with Mrs. Williamson’s.

The mistake wasn’t found until after Mrs. Williamson passed away, as is common in such circumstances.

Because the will was improperly witnessed at the time, Mrs. Williamson’s son attempted to invalidate it. The Court of Session ruled that the creator of the Will and two witnesses had to sign legitimate subscriptions. The witness had omitted his customary signature on that approach. The Will was invalid.

The outcome would be different with a new law enacted after 1995.

The Will would become effective after Mrs. Williamson signed it. Additionally, having one legal witness sign the will would be beneficial because it would enable the will to “prove itself,” but it is not necessary for the will to be valid.

As a result, wills drafted before August 1, 1995, may be subject to additional legal challenges. We can include that – admittedly improbable – example with the other more common grounds for disputing a will, such as the legal rights of close relatives and the decedent’s infirmity at the time the will was drawn up.

We’ll look at a “bonus” basis of claim in just a moment, but it’s only valid in cases when there isn’t a will.

#4. How can a Cohabitee make a claim but don’t have a will

Section 29 of The Family Law (Scotland) Act 2006 refers to a surviving cohabitant living in Scotland whose partner died without leaving a Will.

The sheriff has the authority to issue a payment or capital transfer order to the survivor. If the surviving person were married to the deceased, they would have gotten more money under the law of intestate succession.

Within six months of the deceased person’s passing, the claim must be filed.

If issues cannot be resolved during that time, a court action must be filed. There is no way to prolong the six-month window. The ability to assert a Section 29 claim is forfeited if judicial action is not brought up before the deadline.

Although 6 months is a short period of time in practise, many of these cases are likely to settle before litigation is necessary. It’s important to get legal counsel as soon as possible if you believe that you or someone you know may have such a claim.

Let’s review the topics we discussed in this article now.

Conclusion

You don’t want your “performance” to be thrown out, whether you’re doing short-track speed skating or writing a Will.

It may be “thin ice” to get your wishes expressed in your will carried out to the point of completion after your passing.

• Close relatives of yours have the option of seeking legal claims or accepting their share from your will.
• You are not legally able to execute a will, or
• Your will was executed before August 1, 1995, and as a result, it does not comply with the stricter standards for validity that apply to wills created after that date.

There may be grounds to dispute how the estate of a deceased cohabitee would otherwise be divided for the partner of a deceased cohabitee who did not leave a Will. But you must act fast. And if you want to be successful with a “Section 29” claim, you will most likely need a lawyer’s legal advice.

So how can our Solicitor assist you? 

We hope that this article has helped you understand the circumstances under which a will can be contested in Scotland.

Always keep in mind that you can revise your Will, and it may be more important than ever to do so if your existing Will was created before 1995.

At SGT Law Firm, we’d be happy to assist you. All initial enquiries are free of charge and without any commitment to go the situation forward until we have full instructions from you on how to continue.

Even if we are unable to meet with you in person, in numerous instances it is still possible for us to complete the entire process—from receiving initial instructions to signing the Will—with you.

You may contact us by phone at 0141 881 8795 or by sending a free online enquiry through our website.