Wright Johnston and Mackenzie Solicitors

Challenging a Will

After a loved one dies, it can often be difficult to find out their Will does not reflect what was anticipated. In some scenarios it may be possible to challenge the Will – but legal advice will be needed for these, often, up-hill battles.

When people talk about “challenging a Will” they often mean different things.

From a legal perspective, if someone challenges a Will, the outcome you are looking for is to have the Will declared by a Court to be invalid. If successful, the Will is treated as if it did not exist – this can be beneficial if the party seeking the action would inherit more as a result.

Where this is not the outcome you are seeking, but are unhappy as to the terms of a Will, we can still assist in Helping Beneficiaries or parties who may have a Legal Rights entitlement – and these pages may provide some guidance to you.

Otherwise, for those looking for assistance in challenging a Will, our expert team is on hand to assist, but you should be aware of the difficulties in pursuing these matters.

In Scotland, there is a general presumption that a person is capable of preparing a Will. This position must somehow be dis-proved to be successful.

The main grounds on which a Will can be challenged are where:

  • the deceased did not have capacity when the Will was signed to fully understand it
  • there was some form of “undue influence” exerted by another party
  • the deceased was frail and susceptible to influence, which “facility” was exploited
  • there was some fundamental fraud in relation to the Will (e.g. it was not signed by the deceased)

None of these are easy to prove - there is a high bar to meet in order to satisfy a Court that a Will ought to be set aside. To do so, there’s a vast amount of proof required including things like expert medical evidence or affidavits from friends, family and those who knew the deceased best.

More importantly, people often underestimate the time these actions can take and the toll it can have emotionally at what is an already difficult time. Court actions can also be expensive and there is never a guarantee of success. With that in mind, our team can also advise on the many alternative routes to resolving these matters.

We welcome any queries from people concerned about the terms of a Will, and can discuss the options available to you.