Nicola Neal, senior solicitor, looks at the validity of wills and the ways in which they can be challenged.
The Court of Appeal in England recently held that Heather Ilott was due one third of her mother’s estate, despite her mother Melita Jackson having deliberately cut her out of her will in favour of animal charities when she died in 2004.
This case was won on the basis of the Inheritance (Provision for Family and Dependants) Act 1975 (Gazette issue 46742). It has attracted widespread publicity, and raises questions about when it is unreasonable to alter the terms of a clearly drafted will after the testator’s death.
Challenging the formal validity of a will in Scotland
Rightly so, it is notoriously difficult to successfully overturn a will. It is a fundamental principle enshrined in Scottish law that, when making a will, a testator should be able to leave their estate to whoever they wish.
For that reason, Scottish courts will be reluctant to interfere with and change the terms of a will unless there is clear evidence to support a formal challenge to its validity.
The 1975 Act does not apply in Scotland. However, the validity of a will can still be challenged on any of the following 4 grounds:
- facility and circumvention
- undue influence
The procedure for challenging the validity of a will and seeking to have this overturned involves an application to either the Court of Session or the Sheriff Court to have the will reduced. However, the ‘reasonableness’ of raising such an action will ultimately depend on a number of factors, including (but not restricted to) the following:
Is there evidence to support an action of reduction, or does the challenge amount to the pursuit of an unsubstantiated ‘point of principle’? A will cannot be challenged because it is unfair. There must be clear and persuasive evidence to support a challenge to its validity, and full investigations must be made before an action is raised, or even seriously contemplated.
The type of evidence required will depend on the ground on which the will is being challenged. However, it may include:
- Reviewing the testator’s medical files (if available) and obtaining statements from medical practitioners who can speak to the testator’s state of mind in the period leading up to the will being signed, and when it was actually signed.
- If the will was drafted by a solicitor, steps should be taken to request and review the testator’s client file. Ideally, one would hope to see a detailed note of the meeting at which the testator’s will instructions were given. This may shed light on any ‘peculiar’ instructions given by the testator, and it may, for example, explain the testator’s logic for disinheriting a relative.
Revival of earlier wills
If the testator’s will is overturned by the court, any earlier will is revived, or if there is no earlier will, the testator’s intestate estate would be distributed in accordance with the Succession (Scotland) Act 1964 (Gazette issue 43353). Steps should be taken at the outset to ascertain the existence of any earlier wills, and to clarify whether the person challenging the will (the pursuer) would fare better if the will was overturned.
The costs of pursuing an action to overturn a will are likely to be substantial. What’s more, not only will the pursuer have to consider their own costs, but in the event that their challenge is unsuccessful, the pursuer may also have to pay a proportion of the defender’s legal expenses. Depending of the value of the testator’s estate, it may not be economical to raise an action to overturn the will.
On a related point, it’s worth noting that in Scotland it may not have been necessary for Heather Ilott to apply to the court to overturn her mother’s will (unless there was evidence to support a challenge to its formal validity). Instead, Heather would have been protected by the forced heirship rules and she could have instead claimed her ‘legal rights’ from her mother’s moveable estate.
This route would provide a more certain outcome and would be far less expensive, when compared with a court action to have the entire will overturned. The question of ‘reasonableness’ is irrelevant when it comes to legal rights as, provided that the testator was domiciled in Scotland at the date of death, they apply universally and automatically.
About the author
Nicola Neal is a senior solicitor at Brodies LLP. Find out more @BrodiesLLP and Brodies' website.