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Contesting a Will in Scotland

The process of contesting a Will can be a difficult one. While the death of a loved one is a stressful time for the family under most circumstances, the idea that the Will does not accurately reflect the wishes of the person who has passed away can make this even more difficult. There are certain instances in which a Will may be challenged. This can be a complex process and our experts at Freelands Solicitors are here to help you assess whether a challenge is possible. If you have any questions regarding any of the following, or surrounding what happens if a Will is in fact overturned, please do not hesitate to contact our team using our contact form, or the details at the bottom of this page.

Evidence Required

In order to contest a Will, an application must be lodged with the Sheriff Court or Court of Session. In reviewing the situation, the court must be provided with solid evidence to back up your claim, which might include medical records, statements from doctors, birth certificates, a family tree and solicitor case files, for the court to review. Different evidence will be required based on the individual circumstances at hand.  A Will cannot be contested solely due to a beneficiary expecting more, or someone who was left out of the Will entirely feeling disappointed. There must be sufficient grounds for challenging the Will, which fall into one of the four following categories.

Incapacity

Contesting a Will on the grounds of Incapacity means that evidence must be provided to back up the claim that testator (the person who made the Will) was not of “sound mind”. This means that they were unable to fully understand what they were doing when the Will was made. This will be evaluated by the court, with a judge deciding whether or not there was testamentary capacity, by exploring whether the testator understood what effect the Will would have, the amount of property being divided in the Will, who they were leaving specific pieces of property to and why. To find out more about contesting a Will on the grounds of Incapacity, please do not hesitate to get in touch with our team at Freelands Solicitors.

Undue Influence

Contesting a Will on the grounds of “undue influence” means it must be proven that the testator was influenced to have their Will prepared in a certain way by a person they trusted. This abuse of a relationship usually will lead to the Estate being divided in a way which benefits the person exerting influence over the testator. The influencer could be a family member, a carer or a legal or financial adviser - anyone in a position to affect the testator’s decisions. To challenge under these circumstances, it must be proven that this influence existed, and was strong enough to impact on the contents of the Will, interfering with the decision making process which should always be completely voluntary on the part of the testator. If you are concerned that the Will of a loved one has been affected by undue influence, contact Freelands Solicitors today.

Facility and Circumvention

Contesting a Will on the grounds of Facility and Circumvention means that it must be proven that the testator was taken advantage of due to weakness, even if full Incapacity cannot be proven. Ill mental or physical health or old age are examples of circumstances in which this might occur. Proof must therefore been found that the person who is contesting the Will has suffered as a consequence of this action and that the person who took advantage has benefitted in the final Will. For more information on how to establish if Facility and Circumvention may be grounds for contesting the Will in your situation, please contact us at Freelands Solicitors today.

Fraud

The final instance in which a Will may contested is on the grounds of Fraud. If it can be proven that the testator wrote the will in a certain way due to the deceptive actions of another party, the Will may be challenged. If you believe fraud has been a factor in the writing of a loved one’s Will, please do not hesitate to contact one of our experts for advice.

Contact our expert Wills, Trusts & Executry Solicitors in Motherwell & Wishaw

At Freelands Solicitors, our specialist wills solicitors can provide straight-talking, honest and practical advice when it comes to making your Will. If you require advice on contesting a Will, then please get in touch using our online contact form. Alternatively, please call our Motherwell Office on 01698 352600 or Wishaw Office on 01698 355936

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