One of my favourite films in 2019 was Knives Out, the whodunit starring Daniel Craig as the American south’s answer to Poirot. It features my new favourite “Reading of the Will” scene. You know the ones: the scenes where the deceased person’s lawyer reads out the provisions of the Will in front of the assembled family members, who each take turns in being smug or disappointed as each clause is teased out for maximum drama. For better or worse, there is no such event as the “reading of the Will” in Scottish estates.
In Knives Out, it is fair to say that some of the characters get a nasty shock about the terms of the Will. Disappointed family members immediately protest: surely the provisions of their father’s Will are so clearly ridiculous as to be evidence that he was not in sound mind when he signed it. The lawyer patiently replies: “you not liking what he did does not speak to testamentary capacity”. The family desperately Google other grounds for challenging the Will. “Undue influence!” declares a grandson. “No evidence” responds the lawyer.
Private Client lawyers all over the world will immediately recognise this exchange. The scene neatly encapsulates a common situation with Wills: family members often do not like what the Will says; they declare that they intend to challenge the Will; and eventually they discover that this is actually very difficult to do.
Blackadders’ Managing Partner, Johnston Clark, recently provided a short video on this topic:
In Scotland, a Will may be overturned by pursuing an “action for reduction” through the Sheriff Court system. In order to be successful, the pursuer must establish that, on the balance of probability, one of the following grounds are satisfied:
- Fraud – the deceased was induced into signing the Will through fraud or deception.
- Mental incapacity – the deceased was not mentally capable at the time of signing.
- Facility and circumvention – the deceased was mentally fragile or facile and was ‘gotten round’ by someone perhaps looking to steer the Will in their favour.
- Undue influence – a person in a position of trust and responsibility exerted influence in order to get the deceased to do the Will in a particular way, which may also involve some form of force or threat.
There is a lot more to unpack about each of those grounds, but the difficulty is always in providing sufficient evidence. Inevitably, these things often happen in private, so proving exactly what went on can be difficult after the fact. An action to reduce a Will can also be expensive, and so any would-be challengers really should consider things carefully, including taking appropriate legal advice.
The Private Client team at Blackadders are experienced in these matters and can assist with all kinds of situations involving Wills and estates. Whether you wish to look at challenging a Will, or whether you are worried about your own Will, we can help.
Stewart Dunbar WS, Associate Solicitor
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2011
Members of the Law Society of Scotland. Authorised to conduct Investment Business under the Financial Services & Markets Act 2000 by the Financial Services Authority.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.