A will expresses the writer's wishes regarding the distribution of his estate when he dies. In Scotland, the law relating to wills is set out in the Succession (Scotland) Act of 1964. Scots law of succession distinguishes between heritable and movable property. Heritable property is land and buildings, including crops and minerals. Movable property comprises everything that is not heritable; for example, money, vehicles, jewellery or shares. You can contest a will under Scots law on the grounds of validity of signing, legal rights or undue influence.
Check with a solicitor whether the will has been validly signed. The Requirements of Writing (Scotland) Act 1995 states that a will executed after August 1, 1995, must be signed on each page by the writer. On the final page, the writer must sign in the presence of an independent witness. If it has not been validly signed and witnessed, it's possible to challenge the will by raising a court action.
Consider your relationship to the deceased. In Scots law, a spouse or civil partner has legal rights to the deceased's estate, whether or not he or she is provided for in the will. The spouse or civil partner may only make a claim on the movable part of the estate and has no right to the heritable property. Similarly, children who are not included in the will may make a claim on the deceased's movable estate. If you are a relative, but not a spouse, civil partner or child of the deceased, you have no legal rights to his estate.
Find out whether anyone may have had an undue influence on the deceased when he was writing the will. You can then raise a court action to have the will nullified. In this eventuality, the deceased's estate will be distributed as if he had never made a will. This challenge is less likely to succeed if the will has been drawn up by a firm of solicitors.
Discuss with other family members whether you want to reorganise the distribution of the estate. In certain circumstances, often to reduce inheritance tax, all beneficiaries sign a document known as a deed of family arrangement. This must be done within two years of the deceased's death and all beneficiaries must agree.
In all circumstances, you should consult a solicitor. Most solicitors offer an initial consultation free of charge.
Contesting a will may be expensive and emotionally draining.
Tips and warnings
- In all circumstances, you should consult a solicitor. Most solicitors offer an initial consultation free of charge.
- Contesting a will may be expensive and emotionally draining.