In Scotland, there are very clear rules on when you can contest a will, and what your legal entitlements are if you’re a family member of the deceased.
When you lose a loved one, as well as having a lot of emotional burden to face, there is also the unfortunate administration that must be taken care of, including acting upon their will. It is up to the executor named within the will to carry out the wishes, but as a close family member, you might have reason to challenge the will.
Read on to find out more about challenging a will in Scotland, including the process and your legal entitlements.
‘Confirmation’ is the name given to the legal document from the court that gives the executor permission to start dealing with a deceased person’s estate. It’s the equivalent of probate in England and Wales, with only minor differences.
Once confirmation has been granted to an executor, you’ll need to act fast if you want to challenge the will. You’ve got six months from the death in order to issue your challenge, but you should inform the executor as soon as possible to prevent them carrying out the orders and potentially distributing the estate before your claim is complete.
There are four accepted grounds for challenging a will in Scotland.
The first of these is incapacity. This argues that the person who made the will wasn’t able to comprehend what they were doing and the effects of signing away their property.
The second is undue influence. To prove this, you’ll need to show that the person who wrote the will had a relationship of trust and confidence with someone that was abused. So it might be a partner living with the deceased, or a relative, who put pressure on the person to write or amend their will in order to directly benefit them.
The third ground is classified as facility and circumvention. This is similar to undue influence, but it specifically references the person writing the will as being weak, either due to illness or just old age. If someone then took advantage of them on that basis to pressure them into writing or amending a will, you have the ability to challenge it.
It’s also important to note that only a married partner, civil partner or child can contest a will. Siblings or parents will not usually have grounds to issue a challenge unless they are named in the will, and even then only certain applications can be made. Speak to a solicitor if you’re unsure, and they can inform you of whether you are entitled to make a claim.
If you want to challenge a will, you’ll need to apply to either the Court of Session or the Sheriff Court. Speak to a solicitor, and they will handle it for you, ensuring the application is made in the right place and with the best chance of success.
You’ll need to gather evidence to support your claim. This can come in many forms, and so you should consider medical files or statements from the deceased’s doctor. It could include statements from the solicitor who drafted the will, or just notes from the meeting that they held when the will was written. You may even need to bring in a handwriting expert if you’re looking to claim that a will has been forged.
Don’t be under any misconceptions – challenging a will is a difficult and costly process, but ultimately it is the right thing to do if you feel a loved one’s wishes aren’t being followed, or you’ve been unfairly cut out of entitlement. However, just feeling like you’ve been hard done by isn’t enough to make a claim – that’s why you need evidence that the will is actually invalid.
In Scotland, you have certain legal entitlements to your family’s estate. So if a relative dies and they do not mention you within their will, you can make a challenge that is guaranteed to succeed based on your relationship with the deceased.
The legal right of any spouse or civil partner in Scotland is to one-third of any moveable estate. The moveable estate is classed as anything that isn’t land or property – so cash, or possessions. If you’re married to someone, or in a civil partnership with them, then you are automatically entitled to a third of their moveable estate even if they haven’t included you in their will.
It is similar for any disinherited children too. If your parent has died and you aren’t mentioned in the will, you have a legal claim to part of their moveable estate. A third of the estate is guaranteed to all children, so it’ll depend on how many siblings you have. If you’re an only child, then that third is yours, but you’ll need to then split that with your brothers and sisters if you have any.
These are just the minimum legal entitlements and only come into play if you don’t receive your fair share. If the will already account for giving you more than this, then it won’t be a concern.
You have six months from the death of the family member to lodge your complaint, but from there it can vary completely on how long it will take to complete the challenge, as well as how much it will cost you.
Some challenges are remedied very quickly, usually when there is a clear and obvious breach of the rules that show a will is invalid. These can be resolved within just a couple of months at most, and you may only incur a low fee for your solicitor, which is usually no more than £2,000.
However, any cases that go to mediation often take longer. It’ll depend on whether you communicate in-person at an arranged meeting or via letter, which takes longer as responses fire back and forth. You should expect to be waiting up to six months for a final solution, but ultimately it depends on your ability to reach an agreement.
Your solicitor fees will rise significantly if you need to go to mediation, as their required hours will intensify, and you should be prepared to pay up to £10,000 if the case is sorted at this stage.
While most claims are resolved at mediation, some many need to go to court for a trial. They’ll be seen before a judge who will determine whether a will is valid or whether it needs to be overruled. If that happens, then an older will could be revived.
Otherwise, the estate will be distributed under the rules of intestacy. These rules are the same as if no will had ever existed, and will see any property given to a living spouse or civil partner, and then the remaining estate split fairly between the partner and any children.
Here at Money Savings Advice, we have partnered with some of the UK’s leading Contested Probate claim management companies. They have already helped thousands of people make successful probate claims and they can do the same for you.
Choosing an independent claims management company means they won’t proceed with a claim unless they are sure it is in your best interests. They are also regulated by the FCA, which gives you an additional layer of protection.
If you would like to speak to one of these claim management companies who can help you make a probate claim, then click on the below and answer the very simple questions.
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