Challenging a Will in Scotland

Although how we want our assets and belongings to be distributed when we die may change over time, sometimes changes can be made very close to death. Once a will is made, the right to change it is important, but for those left behind, it can sometimes be hard to reconcile a change of intention. A recent case in the Scots Courts highlights this very issue, when a valid change was made to a will less than two weeks before death.

Deirdre Romanes died of cancer in 2010. She had made a will in 2008, leaving much of her estate to her younger sister, Elizabeth. But two weeks before she died, she changed her will in order to leave a substantial legacy (£3 million) to a Trust in order to re-finance a company she built up and helped run, Dunfermline Press Limited. Elizabeth challenged the will on the grounds that her sister was in so much pain, causing her physical and mental exhaustion, she couldn’t have understood what she was doing (she lacked testamentary capacity), and even if she did understand, she wouldn’t have been able to resist pressure from those around her to change it (she was subjected to undue influence and facility and circumvention).

While the court recognised that Elizabeth’s conduct during the legally and emotionally difficult case was dignified and restrained, the will was upheld. Lord Glennie identified some of the reasons why people may change their wills close towards the end of their lives, often when they are mentally frail, but noted that such situations usually don’t matter when applying the law: ‘…they may be tempted to cut corners, make assumptions which they might otherwise not have made, reach quick decisions when ideally they might have thought about them at greater length and in greater depth, re-assess their priorities, become more hard-nosed on the one hand or sentimental on the other, change their minds and generally make all sorts of decisions that they might not earlier have dreamed of making…[but]…unless there was incapacity…or unless undue pressure or influence was used to procure the deed or will…then the deed or will must stand. There is no basis for setting it aside’.

The Legal Basis for Setting a Will Aside

Although each case turns on a detailed consideration of the facts, the judgment provides an overview of the basic principles that apply when seeking to challenge a will.

Testamentary Incapacity 

To be essentially valid, a will must be made by a person who is capable of understanding that they are making a will, the effects of the will, the extent of the property being disposed of and the claims of those who might expect or be expected to be provided for in the will. This capacity to understand has nothing to do with their actual understanding, nor is it a test of memory or intelligence.

Undue Influence

A will may be set aside if the person who made the will was unduly influenced. This means that there has been an abuse of a relationship of trust and confidence. This requires there to have been a relationship in which one party was capable of exerting a strong influence over the other, and evidence of some pressure that overpowered the will or freedom of the person to make the will. Persuasion alone is insufficient, and it is irrelevant whether the person exercising the influence was doing so for their own gains.

Facility and Circumvention 

A will may be set aside if the will maker was facile and pressured to make the new will by the circumvention or fraud of another. This means that they were so weak or pliable due to ill-health, old age or by their nature, either permanently or temporarily, that they were unlikely to resist the fraud or circumvention (improper pressure) of another.

Applying these basic principles to the facts of the case, the court found that Deirdre had full capacity - meaning she understood the assets she had at her disposal and the obligations were due, or given, consideration - and she wasn’t unduly pressured by those around her. While a cautionary tale for those seeking to challenge a will, the case also demonstrates how the Scots courts respect the legally valid intentions of the deceased.

Read our guide on wills here.

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