The idea that your family members would ever challenge the terms of your last Will & Testament can be a very distressing one. Most people would like to think that, regardless as to its content, their family would respect their final wishes. The reality, however, is that it is becoming increasingly common for Wills to be contested by surviving family members. This was recently reported on in England (available here) where there has been a string of highly publicised challenges to the terms of someone's Will.
The reasons why a Will may be challenged in Scotland are tightly controlled by legislation. The hope is that family members will be able to respect your wishes, regardless of their personal feelings as to how you have decided to allocate your property when you pass away. At Wilson & Fish, we are often asked to provide guidance and support to those who are considering drafting a Will and those who seek to challenge its terms. In this blog post, we review the law and practice governing Wills in Scotland.
What needs to be kept in mind regarding Wills?
It is important to stress that a Will is a very important legal document. It will convey to your surviving family members the extent of your estate - the collection of property that has been amassed over the course of your life - and how it is to be distributed amongst those who survive you. It is advisable that, in order to help address any potential ill feeling among your surviving relatives, to make them aware of your intentions and to help them understand your wishes. If you have family members who are expecting to inherit some of your estate, but you have other intentions, taking the time to point this out to them early on can avoid any potential risk of their challenging your Will when you pass away.
Reducing the chance of your Will being challenged: what needs to be done?
Although the law permits challenges to the terms of a Will, even if it has been drafted with the utmost care and attention, the grounds on which a Will can be contested are fairly limited. However, any such claim against your Will could have a significant emotional impact on your family, exposing them to harmful litigation when they should otherwise be grieving for their loss. There are a few steps you can take to try and minimise the risk of this happening:
- Honour your obligations
Arguably the most relevant basis for which your Will may be contested is if you have not discharged your legal obligations to surviving family members who have legal rights in respect of your estate. If you have children and/or a spouse, then you are required by law to make some kind of provision for them in your Will. How much of your estate you are required to allocate to your spouse and/or children will depend on how many children you are survived by. If you fail to provide some inheritance for them in your Will or what you have allocated to them is less than what they are entitled to by law, then they are entitled to raise a challenge against your Will.
- Observe the technical legal requirements
Notwithstanding the fact that close members of your surviving family can challenge your Will on the basis that their inheritance is unsatisfactory, any failing to observe the technical legal requirements in creating a Will could leave your Will vulnerable to being contested.
Given their significance as legal documents, the law requires that certain criteria are fulfilled in the creation of your Will. These criteria can be split into two distinct categories: formal validity and essential validity.
Formal validity relates to the manner in which your wishes are recorded. In order to avoid your Will being the subject of litigation on the basis of formal invalidity, you must ensure that your wishes are recorded in writing. Furthermore, it is vital that you sign the document and that your signature is independently witnessed.
While formal validity relates to the way in which your wishes are recorded, essential validity concerns the substance of your Will. This relates to a number of things, the most important of which are as follows:
- It must be clear from the terms of the Will that, whatever is recorded in it, there is no reason to suspect that those terms are not your true final wishes for your estate. You should ensure that the language that is used is very clear and there is no ambiguity that could result in anyone doubting what you meant to be done with your estate;
- You must be fully capable of understanding the terms of your Will. It is important to point out that there will be no legal basis to challenge your Will if those who survive you simply disagree with its terms - the law does not allow this kind of interference. There will only be scope for a challenge if there is some doubt as to your mental ability to understand what you meant in having your Will drafted a particular way. This is particularly important if you suffer from a mental illness. The law in this respect is very clear: the fact that you suffer from a mental illness will not permit a challenge against your Will to succeed, provided you were capable of understanding the consequences of your intentions for your estate when the Will was created;
- It is of utmost importance that you do not allow anyone else to interfere or exert any pressure on you when you draft the terms of your Will. The law will protect the terms of your Will, but only if there is no reason to suspect that the content is the result of someone else's manipulations.
The consequences of your Will being challenged and its terms being defeated are severe. It means that your wishes will not be honoured and the courts will be forced to distribute your property according to a set of rules which could mean that some of your family may not be able to inherit as you would otherwise have wished. It is advisable to speak about your wishes to your family and help them to understand your thinking. This can help to reduce the risk of your Will being challenged, and help your family adjust when you pass away.
Contact Wilson & Fish Solicitors Today
Planning for a time when we are no longer here may seem strange, but it is a very pragmatic decision to spare family members unnecessary heartache. Wilson & Fish is a specialist law firm providing legal advice and support to clients in drafting Wills that accurately reflect their wishes. If you would like to speak to someone about planning for the future, and how best to put those plans into action, contact the solicitors at Wilson & Fish today on 0141 222 7951.