Losing someone close to you is hard enough without discovering, once the dust has settled, that something about their will doesn’t sit right. Maybe the terms feel out of character. Maybe a family member was left out entirely, or a new will appeared shortly before the person making it passed away, and nobody quite understands why. Questions like these come up more often than people expect, and if you’re asking whether it’s possible to contest a will in Scotland, you’re not alone in wondering.
This article looks at the grounds on which you can challenge a will in Scotland, who has the standing to bring a claim, and what the process generally involves. Scots law has its own particular rules around succession, legal rights, and testamentary capacity, and these differ in important ways from the law in England and Wales, so it’s worth understanding the Scottish position specifically rather than relying on general guidance found online. If any of this sounds like it might apply to your situation, the family law team at Family Lawyers Glasgow, would be glad to talk it through with you. There’s no obligation, and in our experience, a short conversation early on often saves a great deal of worry later.
What Does It Mean to Contest a Will?
Contesting a will means formally disputing whether it should be treated as valid, or whether its terms should be given effect. This is different from simply being unhappy with what you’ve been left, or feeling that a will is unfair in a general sense. To succeed, someone seeking to contest a will in Scotland needs to point to specific legal grounds – not just a sense that the outcome feels wrong.
That distinction matters because disappointment on its own, however understandable, isn’t enough. A disappointed beneficiary who received less than they hoped for doesn’t automatically have a case. What the law looks at instead is whether the will itself was properly made: whether the testator had the mental capacity to understand what they were signing, whether the correct legal formalities were followed, and whether anyone improperly influenced the outcome.
In many cases, families come to us not entirely sure whether what they’ve noticed amounts to genuine grounds for contesting a will, or whether it’s simply a difficult but valid decision by the person who made it. That’s a perfectly reasonable question to bring to a solicitor, and it’s often the starting point rather than the end of the conversation.
Grounds for Contesting a Will in Scotland
There are several recognised grounds for contesting a will in Scotland, and most challenges fall into one of these categories.
The first, and probably the most common, concerns testamentary capacity. For a will to be valid, the testator must have had the mental capacity to understand the nature and effect of what they were doing at the time the will was made – in other words, they needed to appreciate the nature and extent of their property, understand who might reasonably expect to benefit, and grasp the implications of the decisions they were making. Where there’s a genuine question over someone’s mental capacity to understand these things, perhaps because of dementia, a serious illness, or the effects of medication, medical evidence often becomes central to the case.
A second ground is undue influence, sometimes described in Scots law through the related concept of facility and circumvention. This covers situations where someone was in a weakened state – perhaps frail, isolated, or overly dependent on another person – and was, as a result, more easily influenced or coerced into making a will that didn’t genuinely reflect their own wishes. It isn’t enough to show that someone was close to the testator and stood to benefit; there generally needs to be evidence that this closeness was used to steer the outcome, taking advantage of trust and confidence that had been placed in them.
There are also more straightforward, procedural grounds. A will might be challenged because it wasn’t signed by the testator correctly, or because the legal requirements for witnessing weren’t met. Scots law is fairly precise about formality, and a document that looks convincing on paper can still be open to challenge if these technical requirements weren’t satisfied.
Who Can Actually Make a Claim?
Not everyone who feels aggrieved has the standing to bring a court action. Generally speaking, those considering contesting a will need some form of legal interest in the estate – usually close family members, such as a spouse or civil partner and children, including adopted children, or those who would inherit under the rules of intestacy if the will were set aside. If you’re unsure whether you’d have an interest in the estate sufficient to bring a claim, this is exactly the kind of question worth raising with a solicitor before you go any further, rather than assuming either way.
It’s also worth separating two things that often get confused: challenging the validity of a will, and claiming legal rights. Under Scots law, a surviving spouse or civil partner and children have a legal interest in the estate regardless of what the will says, through what’s known as legal rights. These legal rights claims apply to what’s called the net moveable estate, and can be claimed even where a person has otherwise been left very little, or nothing, under the will itself. It’s a distinctly Scottish protection – the rules of intestacy and legal rights together mean that, in most circumstances, close family can’t be entirely disinherited, even if that was the wish expressed in the will.
What Happens If You Decide to Challenge a Will in Scotland
If, after taking advice, you decide to challenge a will, the matter is usually raised in the sheriff court, although more complex or high-value cases can end up in the Court of Session. The court will look at the evidence available – which might include medical records, witness accounts, correspondence, and sometimes earlier, previous wills – and decide on the validity of the document in question.
This is rarely a quick process, and it’s fair to say that the strength of your case often depends heavily on the quality and consistency of the evidence you’re able to gather. Where testamentary capacity is in dispute, for example, GP records and evidence from those who knew the person around the date of death, or around the time the will was made, can be decisive. Where undue influence is alleged, the picture tends to be built from a combination of circumstantial evidence and testimony about the relationship between the testator and the person accused of exerting influence.
It’s also worth being realistic about timing and cost from the outset. Court action of this kind can take time, and the likelihood of a successful outcome depends on the individual facts of the case – there’s rarely a guaranteed result, and a solicitor who specialises in wills and succession should be honest with you about the strength, or otherwise, of your position rather than simply encouraging you to proceed.
The Role of the Executor, and Practical Considerations
The executor is responsible for administering the estate in line with the will, or, where there is no valid will, in line with the rules of intestacy. If you’re a beneficiary and you’re considering challenging a will, it’s usually sensible to notify the executor of your intentions reasonably early, since this can affect how and when the estate is distributed. Executors themselves sometimes find themselves caught in the middle of family disagreements they didn’t anticipate, and having proper legal advice at that stage tends to make the process considerably smoother for everyone involved.
It’s also worth remembering that powers of attorney, granted while someone was still alive, are a separate matter from the will itself, though the two sometimes become relevant to the same dispute – for instance, where concerns about a person’s mental capacity arose well before their death, and questions are later raised about decisions made under a power of attorney around the same period. Other practical matters, such as inheritance tax and the extent of heritable property within the estate, can also affect how a dispute unfolds, even though they aren’t grounds for contesting a will in themselves.
Where to Go From Here
If you’re grieving the death of a loved one and now facing the added strain of wondering whether their will truly reflects their wishes, it’s a genuinely difficult position to be in, and it’s not something you need to work through alone. Every family’s circumstances are different, and what looks straightforward on paper can turn out to be more nuanced once you understand the detail of Scots law around succession and legal rights.
The team at Family Lawyers Glasgow has supported many families through exactly this kind of situation, and we know how sensitive these conversations can be. If you’re weighing up whether you have grounds to challenge a will, or you simply want to understand where you stand before deciding what to do next, we’d encourage you to get in touch with Complete Clarity Solicitors for tailored advice. A first conversation costs you nothing but a little time, and it can bring real clarity at a point when clarity is often hard to come by.
