Contesting a Will solicitors
If you feel you have grounds to contest a will or need help defending one, our dispute resolution team can provide legal advice and guidance on the process.
Overview
Contesting a Will in Scotland
Our solicitors are regularly consulted in situations where there is a concern that a will may not truly reflect the wishes of the deceased. This includes situations where it is suspected that the testator may have been under pressure, or lacked the mental capacity to make a valid will.
These cases are especially common in situations where there may be elderly or vulnerable individuals. We also see this where there have been second marriages and an apparent failure by the testator to provide as expected for a new spouse or partner or where existing family members have been excluded to the benefit of a new spouse or partner. We are able to advise in situations where the will may not have been properly written or signed or where it has been prepared in a foreign country.
We can also, in particular, assist in situations where there is a question as to whether the testator had sufficient mental capacity to make a will.
Key contacts
THE TEAM
Our experienced team advises clients every day on the available challenges to wills . They have acted for clients both in challenging wills and in resisting challenges to ensure their terms are upheld.
FAQS
Common questions about contesting a Will
What are grounds for contesting a Will?
Who has the legal right to contest a Will?
Who pays legal costs when contesting a Will?
What are grounds for contesting a Will?
Answer
The most common grounds for contesting are that the testator lacked capacity (ie they could not understand the effect of what they were signing); that they were subject to undue influence or facility and circumvention.
These last two are legal concepts which deal with the situation where someone takes advantage of their position of trust to influence the testator or where the testator is mentally weak such that they can be influenced improperly. Other potential grounds for contesting a will include the lack of a properly executed will.
Who has the legal right to contest a Will?
Answer
A challenge might be instigated by any person who can demonstrate a legitimate interest in doing so. The most obvious example will be family members who may say that they had an expectation of an inheritance or who would be entitled to inherit if the will were set aside.
Challenges could also come from third parties such as friends of the deceased or other persons or organisations who had an expectation of a benefit on the death of the testator.
Importantly, whoever brings the challenge, mere disappointment in the content of a will is itself insufficient to firm the basis of a challenge as any challenge must be founded on a legal basis such as those described above.
Who pays legal costs when contesting a Will?
Answer
The person challenging the will will have to meet the legal costs in the first instance. However, if successful, they can expect to receive an award of judicial expenses. This is an award by the court which will cover a proportion of the amount expended.
If the will is successfully defended by an executor, then they may in the same way receive judicial expenses from the unsuccessful challenger and any shortfall might reasonably be an expense to be met by the deceased person’s estate.
“Your support in my troubles has been remarkable, I have relied on you, and felt able to speak freely, although I know that you will not always see things as I do. This has made a great difference to us in bearing our frustration in this situation. You have been a good solicitor and a good counsellor.”
CONTACT US
Call us for free on 0330 159 5555 or complete our online form below to submit your enquiry or arrange a call back.