How to contest a will in Scotland

Rachel Anderson, Partner in the specialist Private Client team at Thorntons, explains what legal rights in Scotland are and how you can challenge a will.

Why might a will be contested?

As estate practitioners will be aware, it is all too common that only after a person has passed away do matters of disagreement between families and potential beneficiaries come to light. It is not uncommon for changes to wills to be made late in life, often to the detriment of a former beneficiary. Frequently such changes are motivated by some dissatisfaction with the testator’s own family, based on some feeling of neglect.

Changes can sometimes call into question the testator’s mental capacity at the time of the change. Circumstances of this kind can present challenging situations for the estate practitioner, with clients seeking guidance on the possible options available to them to challenge the proposed distribution of a deceased’s estate.

Potential challenges of this nature can be separated into two broad categories:

challenges to the will itself
broader claims against the estate

What are the legal requirements of a will?

Before we can consider the possible grounds of challenging a will in Scotland, it is important to note the essential requirements for a will to be valid. For a will to be considered valid:

the testator must be mentally capable of making a will
the will must demonstrate an intention by the testator to deal with all or part of his or her estate
the formalities of signing a will must be complied with – in Scotland, the bare requirement for signing is that the document has been signed at the end (‘subscribed’), although professionally prepared wills will almost always comply with a higher standard of signing to be considered ‘self-proving’

How do you challenge a will in Scotland?

Turning to consider to first category of challenge - being a challenge to the will itself - the usual remedy in Scotland is known as an action for reduction. An action of reduction seeks to set aside the will and sets out to the Court the grounds relied upon.

Depending on the circumstances, an action of reduction can be raised in either the Sheriff Court or in the Court of Session. To raise such an action, as with other Court actions, the person raising the claim must have ‘title and interest’ to do so. Ordinarily this will mean that the claimant stands to benefit in some way from the reduction of the will.

Whilst an action for reduction is the usual method of challenging a will in Scotland, there is a different approach which could be taken depending on the circumstances. Since the introduction of the Succession (Scotland) Act 2016, Courts in Scotland have limited powers to rectify the terms of a will if it can be shown that it fails to express accurately the intention of the testator. This remedy applies where a will was not drafted by the testator themselves but on their instructions and where it can be shown that it does not accurately reflect their instructions.

The typical scenario envisaged would be where there has been a drafting error in a professionally prepared will, but the remedy could also be used where a family member has prepared a home-made will for a relative, as was attempted in the case of Sommerville v Allan [2023] SC EDIN 38.

What are the grounds for contesting a will in Scotland?

There are three main grounds for an Action of Reduction of a will (but it is common for all three to founded upon concurrently):

Firstly, it can be argued that the deceased was lacking the required testamentary capacity to execute the will.
Secondly, even if the deceased did have the required capacity, they were unduly influenced by another actor to sigh the will. This ground is known as undue influence.
Lastly, it can be argued that even if the deceased did have the required capacity, they were of such frailty of body and mind (facile) so as to render them dependent on another, leading to their wishes being circumvented by the will now being challenged. This ground is known as facility and circumvention.

Testamentary capacity

The cornerstone of testamentary capacity in Scotland stems from the English case of Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549. Banks sets out that for a testator to be deemed to have the requisite capacity to execute a will, they must understand the nature and effect of putting such a will in place.

They must understand the extent of the property being dealt with (which is not necessarily the same as the value of that property). They must also appreciate the nature and extent of any obligations which they owe to others and the claims to which they ought to give effect to; and, importantly, that no insane delusion has influenced the testator’s will in disposing of their property so as to bring about a disposal which, if the mind had been sound, would not have been made.

Undue influence

The argument of undue influence was originally a product of English Law which has evolved through Scottish case law. It concerns the existence of a relationship between a testator and another person which creates a dominant or ascendant influence on which the testator has come to rely. It must be established that the relationship was one of trust and confidence through which the ‘influencer’ received a material benefit, to the prejudice of the testator. Importantly, the testator must have prepared the will without the benefit of independent advice or assistance.

Whilst initially a series of Scottish cases restricted the types of person that could be said to have applied undue influence to professionals or persons in an official capacity, the leading case of Horne v Whyte (2005) CSOH 115 (which concerned a housekeeper) confirmed the Court’s willingness to consider other relationships. Following Horne, undue influence can now be averred in circumstances where there were close family members upon whom the testator came to rely.

Facility and circumvention

Lastly, a case of facility and circumvention – similar to undue influence – usually involves an elderly or vulnerable testator being involved with another individual with whom the testator, because of their condition, has come to rely. To succeed on such a ground the claimant must prove three main points:

that the testator was facile or easily imposed upon
that there was circumvention of the testator’s wishes in favour of the beneficiary of the will
that there has been harm to the testator (referred to as ‘lesion’) which is usually the claimant’s loss as a result of the change

Why is challenging a will difficult?

Challenges of this type are, by their nature, complex. The main protagonist is deceased, and the signature of the will may have taken place some time ago. In such circumstances, there is usually a grieving family which can exacerbate such disagreements and lead to prolonged division.

Cases turn on their own individual facts and circumstances and whilst the onus to prove capacity is, strictly speaking, on the persons seeking to uphold the will, challenges invariably see the claimant leading voluminous medical evidence with expert medical practitioners providing a retrospective capacity assessments based on their expert opinion.

Additionally, where a will has been professionally prepared and the testator has had the opportunity to take genuinely independent legal advice, it leaves an uphill battle for any challenger to see the will reduced. Court actions of this type reported after a full hearing of evidence are rare and successful actions are even rarer.

What are legal rights claims in Scotland?

Scots law cannot be said to allow complete testamentary freedom. This is because, perhaps unusually when looking at other legal systems comparatively, spouses and children (including adopted children) cannot be entirely disinherited. This is known as the concept of legal rights. Whilst there are limitations to such a claim, this claim can be important when acting for a client who is set to gain nothing or little in terms of the deceased’s will.

Legal rights can be claimed only against a deceased’s net-moveable estate (generally everything excluding land and buildings known as heritable property) as valued initially at the date of death. Generally speaking, a deceased’s interest in land and buildings are excluded and cannot be claimed against.

We calculate legal rights as a percentage of the deceased’s net moveable estate. Where a deceased is survived by a spouse and children (or issue of a child that has pre-deceased) then the spouse would be entitled to a one-third share of the net-moveable estate and children of the deceased are entitled to a one-third share of the net-movable estate equally between or among them if more than one.

A child’s entitlement does not increase where their siblings do not make a claim. Importantly, there is no obligation for a possible legal right’s claimant to make such a claim but where they do, they forfeit all entitlement, if any, under the deceased’s will.

Where a deceased is survived by either spouse or children (as opposed to both) then either would be entitled to a one-half share of the net-moveable estate, shared equally between or among them if more than one child). Unless voluntarily discharged, a legal rights’ claimant has twenty years in which to bring a claim against the estate.

As can be seen from the above, legal rights can present challenges in relation to separated (but not divorced) couples or where there has been a falling-out between parents and children. It can also place the executor of an estate in a conflicting situation, however the position on that is clear: even where a deceased has made clear through testamentary wishes that they do not wish for a spouse or child to benefit, the executor is under a duty to advise potential legal rights’ claimants of their claim in law and to provide enough information for the potential beneficiary to make an informed choice whether to claim or otherwise.

Summary

As can be seen, there are remedies available for the client seeking to contest a will in Scotland. Reduction of the will can be sought in circumstances where the testator did not have the required testamentary capacity or was unduly influenced by someone they had come to rely upon or where they had become vulnerable and reliant due to their physical or mental frailty.

Even so, a claimant does not always have to seek to challenge the will itself. Spouses and children are able to claim a share of the estate as a matter of law. Nevertheless, claimants should think long and hard before starting down one of these paths. Whether that is by way of a challenge to the will itself or a broader claim against the estate, what must always be borne in mind before taking such action is the proportionality of the possible costs which might be incurred, the likelihood of a successful outcome and the risks which naturally come with Court action.

About the author

Rachel Anderson is a Partner in the specialist Private Client team at Thorntons. She advises individuals and families on a range of personal issues including the drafting of Wills and Powers of Attorney, Executry and Trust administration, and has a particular interest in advising high net worth clients on tax efficient succession planning and asset protection.

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Succession (Scotland) Act 2016 (Legislation)

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Publication date

26 March 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.