Who Can Challenge a Will in Scotland – and how?

When someone dies, their Will is usually followed without issue. However, there are situations where a Will can be challenged. This can feel daunting, especially at an already difficult time, but understanding your rights is the first step.

This guide explains who can challenge a Will in Scotland, the legal grounds for doing so, and how the process works in practice.

Who Can Challenge a Will in Scotland?

Not everyone has the right to challenge a Will. In Scotland, anyone with a legal interest in the estate can challenge a will, provided there are sufficient grounds to do so. This could be a beneficiary under the will, a person who would be entitled to the estate under the intestacy rules, or a legal rights claimant.

Grounds for Challenging a Will

You cannot challenge a Will simply because you think it is unfair. There must be a legal basis. The most common grounds in Scotland include:

• Lack of mental capacity
  The person making the Will (the “testator”) must have understood what they were doing at the time. This includes knowing what assets they had and who might have a claim on their estate. If they were suffering from conditions such as dementia, the Will may be open to challenge.
• Undue influence
  This arises where someone has pressured or manipulated the testator into making a Will in a certain way. It is not enough that someone persuaded them – there must be evidence of pressure that overrode their free will.
• Fraud or forgery
  A Will may be challenged if it has been tampered with, forged, or signed under false pretences. These cases are less common but taken very seriously.
• Failure to meet legal formalities
  A Will must meet certain legal requirements in Scotland, such as being in writing and properly signed. If these formalities are not followed, the Will may not be valid.
• Promises made during lifetime (facility and circumvention)
  This is a uniquely Scottish concept. It applies where a person was vulnerable and taken advantage of, resulting in a Will that does not reflect their true intentions. It often involves a combination of weakness and unfair pressure.

Legal Rights: A Claim Without Challenging the Will

It is worth noting that you do not always need to challenge a Will to make a claim.

• Legal rights claims
  Spouses, civil partners, and children can claim “Legal Rights” to part of the deceased’s moveable estate (such as money, investments, and possessions). This applies even if the Will says otherwise.
• Why this matters
  In many cases, a Legal Rights claim is simpler, quicker, and less stressful than challenging the validity of a Will. It allows family members to receive a share without going to court over whether the Will itself is valid.
• Cohabiting partners
  A cohabitant does not have automatic Legal Rights like a spouse or child if they are not mentioned in the Will. However, if there is no Will, they can apply to the court for financial provision. This must be done within a strict time limit, and the court will consider factors such as the length of the relationship and financial dependence.

How to Challenge a Will in Practice

If you believe you have grounds to challenge a Will, the process usually involves the following steps:

• Seek legal advice early
  A solicitor can assess whether you have a valid claim and advise on the best approach. Early advice is crucial, as some claims have strict time limits.
• Gather evidence
  This may include medical records, witness statements, or earlier versions of the Will. Evidence is key to supporting your position.
• Raise a court action if necessary
  If the matter cannot be resolved informally, a court action may be raised. This is often done in the Sheriff Court or Court of Session, depending on the complexity and value of the estate.
• Attempt settlement
  Many disputes are resolved through negotiation before reaching a full court hearing. This can save time, cost, and stress for everyone involved.

Timescales to Be Aware Of

• Timing is critical in these cases. While there is no single fixed deadline, delays can weaken your case and complicate matters—especially once the estate has been distributed.

Costs and Risks

Challenging a Will can be complex, and it is important to understand the potential risks:

• Legal costs
  These can vary depending on the complexity of the case. In some situations, costs may be recovered from the estate, but this is not guaranteed.
• Emotional impact
  Disputes often involve family members, which can make matters more stressful and sensitive.
• Uncertain outcomes
  Even strong cases carry some risk. A solicitor can help you weigh the likely benefits against the potential downsides.

A Simple Example

Sarah’s father dies, leaving a Will that gives everything to a neighbour who had been helping him. Sarah is excluded.

• Sarah may claim Legal Rights as a child, entitling her to part of the estate.
• If she believes her father was pressured or unwell when the Will was made, she may also challenge the Will itself on grounds such as undue influence or lack of capacity.

This shows that more than one option may be available, depending on the circumstances.

Final Thoughts

Challenging a Will in Scotland is not always straightforward, but there are clear legal routes available for those who may have been treated unfairly or where something does not seem right.

In many cases, the key is understanding whether:

• you have a right to claim,
• there is a legal basis to challenge the Will, or
• a simpler option (such as Legal Rights) may be more appropriate.

Need Advice?

If you are concerned about a Will or your rights following a death, it is always best to seek advice early. A solicitor can guide you through your options and help you decide on the most practical way forward.  For advice tailored to your circumstances, please contact our experienced Private Client Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.