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
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