Scottish Will - Likelihood of Challenge

As I am not a lawyer could I please trouble my STEP colleagues for some advice for a friend of a friend:

X is an aged widow with 2 sons [ A her eldest and B who was adopted when only a few weeks old ] with, as I understand, mental capacity who is domiciled in Scotland and lives near Selkirk.

Unfortunately there do not appear to be any STEP lawyers near where she lives.

A is divorced with 2 adult children, who do not live with him, and now has his partner and her adult child living with him. A is ‘out of favour’ with X primarily because he previously borrowed monies from X that he has not repaid but also for some other reasons.

B lives nearby to X and has 1 child [ a son] who has 2 children and they all live together.
Both B and his son care more for X than A who lives more or less next door to B.

X’s assets are her detached house with approximately 1.5 acres which is probably worth in the region of £350K, land of approximately 4.5 acres for which it is thought planning permission could possibly be obtained if applied for and ‘cash’ of approximately £100K.

X is adamant that she does not want A or A’s partner to benefit and would like to make a new Will leaving:

  • Her house and the land outright to B and his son

  • Her ‘cash’ outright to A’s 2 adult children

Advice on the likelihood of A being able to successfully challenge a Will leaving nothing to him would be appreciated.

I might add that I have already advised as to the possibility that, provided they all have legal capacity, the beneficiaries of X’s Will could decide to change the devolution of X’s estate by entering into a deed of variation within 2 years of the date of her death.

Andrew M Mortimer

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Scots law provides various routes for a disappointed beneficiary to successfully challenge a Will. These range from proving that the testator lacked the requisite mental capacity, to various permutations of proof that a third party exercised some form of undue influence on the testator. The burden of proof is on the challenger of the Will, and there are relatively few such challenges which are successful.

However, rather than challenging the Will itself, Scotland provides for a form of “forced heirship” perhaps best known as “legal rights”. A would be entitled to claim legal rights from X’s estate, regardless of what her Will says. The presence of legal rights might perhaps be said to be the reason why there are not more challenges to the validity of Wills.

The present legal rights system allows the children of a deceased to claim a share in either one-half of the net moveable estate (if there is no surviving spouse) or one-third of the net moveable estate (if there is a surviving spouse). From the circumstances you relate, it would appear that A would have a claim to one-half of one-half (i.e. one-quarter) of the cash element of X’s estate (after deduction of funeral expenses, debts, and certain other expenses). The claim is still one-quarter even if B does not claim legal rights.

To complicate matters, there are proposals to change the system of calculating legal rights. It is difficult to advise on this proposed new system because (a) it is not law yet and we do not even have a draft Bill to be placed before the Scottish parliament – and (b) the proposals which are contained in the relevant Scottish Law Commission Report would require Holyrood to set a “threshold sum”, the level of which will determine the amount to which legal rights claimants will be entitled under the proposed new regime.

Sandy Lamb