Yes, it is possible to challenge a Will in Scotland, but there are specific legal requirements and procedures that must be followed.
Under Scottish law, a Will can be challenged on various grounds, including:
- Lack of capacity: If the person who made the Will did not have the mental capacity to understand the implications of their decisions at the time of making the Will, it may be challenged on this basis;
- Undue influence or facility and circumvention: If it can be shown that the person who made the Will was coerced or influenced by someone else to make certain decisions, the Will may be challenged on this basis; and
- Legal formalities: If the Will was not executed in accordance with the legal formalities required by Scots law, it may not be formally valid. It may be possible to ‘set up’ the Will under a court application or this may not be possible. For example, if the Will has been signed at the top of the page rather than the bottom.
To challenge a Will in Scotland, you must have a legal interest in the Estate of the deceased person, and you must have grounds to challenge the Will. Spouses, civil partners and children will also have an entitled to Legal Rights on the Estate, which is a protection from so called ‘disinheritance’.
The first step is to seek legal advice from a Solicitor who specialises in Wills and Estates as we do at Burnett & Reid LLP. We can advise you on the grounds for challenging the Will, the legal process involved, and the potential costs and timeframes.
If you decide to challenge the Will, you may need to raise a court action in the Court of Session or the Sheriff Court. The court will then consider the evidence and decide on the validity of the Will. Before this we would enter into discussions with the Executor or their instructed Solicitor as to your concerns over the Will.
Contact the team if you would like more information.