When you expect to inherit from a member of your family, for example, your spouse or civil partner, after they pass away, it can be challenging to learn that they had a Will in place which left you nothing. Their Will may have left everything to another family member, or may not have left you as much as you thought you would be entitled to. You may then be interested in whether there is a possibility of contesting the Will, as it did not express the Will that you believe should have been in place. The law provides that there are three grounds for contesting a Will in Scotland. Wills can be set aside on the grounds of a lack of capacity, facility and circumvention, or undue influence.
Grounds for Contesting a Will Due to a Lack of Capacity
The Adults with Incapacity (Scotland) Act 2000 governs the law of dealing with adults who are for various reasons, unable to make decisions relating to their matters. The act sets out governing principles, which give an indication as to the intention of the legislation and are generally held to be the underpinning values of the law surrounding incapacity. There is an emphasis on the idea that any intervention made by a person responsible for authorising intervention unless such action benefits the adult who is incapacitated, and further that any intervention must consider the past and present wishes of that adult.
Relying on the ground that an Adult lacked capacity when making their Will, would suggest that an adult was not capable of understanding the impact of his decisions at the time of making the Will. To satisfy this ground, you would be required to establish that when the Will was created, the Adult met the test for incapacity set out within the Adults with Incapacity (Scotland) Act 2000.
The definition states ‘incapable’ in terms of the act means “acting; making decisions; communicating decisions; understanding decisions; or retaining the memory of decisions”. It goes on to say that such incapacity may be “because of mental disorder or of inability to communicate because of physical disability, but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise)”.
The above acts as a threshold which must be met to satisfy the court that the Will cannot be valid under this ground. To satisfy the Court, evidence will be required which demonstrates a lack of capacity amounting to the above definition. For example, a medical report may be required in addition to witness statements to that effect.
Grounds to Challenge a Will Due to Facility and Circumvention
Facility and circumvention is where there has been a vulnerable adult, and someone fraudulently or purposefully takes advantage of this vulnerability for their benefit, causing harm to another party. There is a three-prong test which must be satisfied to meet this ground.
- The granter of the document must have a weakened mental state. This is the ‘facility’ element. This cannot amount to Incapacity.
- A person must have taken advantage of the granter’s weakened mental state for their own benefit. This is the circumvention element.
- The challenger of the circumvention must have suffered a loss as a result of the same. This is the resultant loss element.
If looking to contest a Will using the ground of facility and circumvention, you must carefully consider the above and whether you believe it to be the case that the three elements are satisfied. If they are satisfied, you will be required to evidence this. The threshold to establish facility and circumvention is particularly high and so any claim under this ground must be able to be proven beyond reasonable doubt.
The difficulty in challenging a document under this ground is highlighted in the case of O’Neil v O’Neil 2017 GWD 22-361 which was heard in the Sheriff Court. In this case, a mother left her property to her two first-born sons, disinheriting her third and fourth sons, by way of signed disposition. She had gone on to make a Will at a later date also in favour of her first two sons. The sons who were disinherited had made financial contributions and had been promised that their position would be protected. Despite this, the disposition which effectively disinherited the two sons was upheld. This was because the evidence which aimed to establish the existence of the three elements of facility and circumvention was not convincing enough to the court.
Undue Influence
Undue influence occurs when pressure or influence from someone in a position of trust affects the granter’s decision-making, by forcing them to question their judgement. Positions of trust can be that of a doctor, solicitor, or carer by way of example. To satisfy the court that the Will must be challenged under this ground, it is required to establish that without the pressure or influence, the Will would have been prepared in another way altogether.
The Right to Contest a Will
You only have the right to contest a Will where you can prove that if the Will did not exist, you would have legally inherited it. Therefore, you will be required to prove that through the line of succession, you would have been a beneficiary. It is worth noting that even if the Will is successfully contested, the outcome may not be what you expect. It is vital to consider what impact contesting the will would have. For example, if there are descendants of the deceased who would inherit before you. It is therefore helpful to create a full picture of your known family tree and undertake an investigation to determine whether contesting the Will is a viable option, which would result in your desired outcome.
Contact us today to speak with a Solicitor
Our Private Client team are experienced, and qualified solicitors, and can provide legal advice that may allow you to legally challenge a will in Scotland. If you have experienced the death of a loved one and want to contest the validity of the deceased’s Will, seek legal advice from us today. Please note, this advice does not apply to England and Wales. Call us today on 0141 433 2626 or complete our online form and let us help you.
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