Will Dispute Lawyers Glasgow

Contesting a will in Scotland

Scots law on wills and inheritance is very different from the law in England and Wales. In Scotland there is no general right to challenge a will simply because it seems unfair. Instead, a will can be set aside if it is not valid, and close family members have fixed legal rights that a will cannot take away. That is why it is important to seek legal advice from solicitors in Scotland who deal with contentious estates regularly.

Our will dispute team is based in Glasgow, with offices in Edinburgh and Dumfries, and acts in will disputes and inheritance disputes across Scotland. We advise family members who believe a will is invalid or that they have been left out, and executors and beneficiaries facing a challenge. Because we handle the litigation ourselves, you do not have to be passed to another firm if the dispute cannot be settled and court proceedings are needed.

Grounds for challenging a will

To set aside a will in Scotland, you need to show that it is not valid. The main legal grounds for contesting a will are:

• Lack of testamentary capacity: the person who made the will did not understand what they were signing, the value of their estate or who might expect to benefit. A diagnosis such as dementia does not automatically mean a lack of capacity; what matters is their mental capacity when the will was signed.
• Facility and circumvention: the person was in a weakened state, someone took advantage of that to influence the will, and harm resulted.
• Undue influence: someone in a position of trust, such as a carer, adviser or relative, used that relationship to secure a benefit under the will.
• Fraud or forgery: the signature was forged or the person was deceived into signing.
• Formal invalidity: the will did not meet the requirements of the Requirements of Writing (Scotland) Act 1995, for example because it was not properly signed. A will that was signed but not witnessed can still be valid if the court is satisfied the signature is genuine, so not every improperly executed will fails.

To bring a challenge, you must have a legal interest in the outcome. That usually means you would inherit more under an earlier will or under the rules of intestacy that apply when there is no will. If the challenge succeeds, the court reduces the will, which means it is set aside as if it had never been made.

Challenging a will or defending a challenge

Legal rights: when you have been left out of a will

In Scotland, a surviving spouse or civil partner and the children of the person who died have legal rights in the person’s estate. These are a fixed share of the moveable estate, such as money, savings, shares and personal belongings, but not land or buildings. Legal rights apply whatever the will says.

• a spouse or civil partner can claim one third of the moveable estate if there are children, or one half if there are none
• the children share one third of the moveable estate if there is a spouse or civil partner, or one half if there is not
• where a child has died, their own children may be able to claim in their place

If the will leaves you something, you usually have to choose between accepting that legacy and claiming your legal rights. Legal rights can be claimed for up to 20 years after the death, but it is much easier to claim before the estate has been paid out. Read more about making a will in Scotland.

Disputes with executors

An executor must gather in the estate, pay the debts and distribute what is left in line with the will or the rules on intestacy. Disputes often arise when an executor delays without good reason, refuses to share information, mismanages the estate or favours themselves or another beneficiary, leaving the rest of the family with questions about how the estate of a deceased family member is being managed.

We can ask an executor to explain their actions and produce accounts, and negotiate to move the estate forward. In some cases the court can be asked to remove an executor or appoint another. If you are an executor facing complaints, we can help you meet your duties and protect yourself. Read more about winding up an estate.

Cohabitants and claims on death

If you lived with your partner without marrying, you do not have legal rights. However, where your partner died without a will, you may be able to ask the court for a share of their estate under the Family Law (Scotland) Act 2006. This claim has a strict time limit that runs from the date of death, and the court has a wide discretion over what to award, so take advice straight away. Read more about cohabitation rights.

How we handle a will dispute, step by step

Why choose Simplicity Legal for your will dispute?

• We act for both sides, so we understand how these disputes are won and lost
• Court work in house, with no need to change solicitor if the case goes to court
• Settlement first, to protect family relationships and the value of the estate
• Plain English advice and clear costs from the start
• Regulated by the Law Society of Scotland

Contact our will dispute lawyers in Glasgow

If you have concerns about a will or the way an estate is being handled, early advice can protect your position. Call 0141 433 2626 or request a callback, and one of our solicitors will be in touch. Please note that we do not offer legal aid. Clarity Simplicity Ltd is regulated by the Law Society of Scotland. This advice does not apply to England and Wales.

Find out more about our civil litigation services and our power of attorney advice.

Your will dispute questions answered