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0141 620 0800 Existing Clients call: 0141 620 0800

The death of a loved one is always hard to deal with, but having to contest their Will creates added stress for all concerned. Problems may arise due to poor drafting, issues during the administration process or as a result of divisions within the family.

Having the support of an experienced team of Wills and Estates Lawyers at this time can be hugely beneficial, enabling matters to be resolved as quickly and sensitively as possible. At Claphams, we regularly advise executors, claimants and beneficiaries on all aspects of challenging a Will. We will work on your behalf to reach a fair and sensible outcome through negotiation.

Grounds for contesting a Will

A Will may be challenged on four grounds:

1. Incapacity

For a Will to be valid, the person making the Will – known as the Testator – must have the capacity to do so. The requirements for this are that they are over the age of 12 and are of ‘sound mind'. If there are concerns that these requirements have not been met, the Will may be challenged on the ground of incapacity. The court will have to decide if the Testator had testamentary capacity at the time the Will was drafted and may hear medical and other evidence to make their decision.

2. Facility and circumvention

A challenge may be made on this ground if there are concerns that the Testator was weak and someone else took advantage of them. It will be up to the party challenging the Will to demonstrate that:

  • the Testator was vulnerable or impressionable (but still had capacity) and that this weakness influenced the instructions in their Will;
  • there is evidence of circumvention – that the person who benefited under the Will acted fraudulently, taking advantage of the Testator’s vulnerability to gain a benefit for themselves; and
  • the person challenging the Will suffered loss as a result.

3. Undue influence

A Will can be overturned if the Testator's trust and confidence have been abused. Often, this will mean that someone in a position of trust and responsibility, such as a carer or doctor, has exerted influence, causing the Will to be drafted in a particular way. The court will have to decide if the Testator acted voluntarily or if they were coerced when making their Will.

4. Fraud

A Will can be challenged if it can be shown that the Testator was induced to act in a way that they otherwise would not have as a result of deception.

How to contest a Will

A Will can be challenged by an application to the Sheriff Court or Court of Session. A successful challenge will result in the Will being ''reduced', meaning that it will be invalid and treated as if it never existed.

Contact our Wills & Estates Solicitors Clarkston, Newton Mearns, Giffnock, Netherlee, Eaglesham, Carmunnock, Stewarton & Southside Glasgow

For advice on challenging a Will in Scotland, call the specialist Wills & Estates Lawyers at Claphams today on 0141 620 0800 or fill out our online enquiry form.

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