HM Insights

Can my Will be challenged after I die?

We have all heard stories about someone who has passed away leaving a Will, with terms which have come as a surprise to the family and/or friends left behind. Maybe the deceased had kept their wishes to themselves during life and they don't ultimately meet certain expectations, or maybe the deceased did tell their loved ones about certain intentions or arrangements which are not actually reflected in the Will. We might wonder what if anything can be done in such situations – can the Will be challenged or changed?

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When can you challenge a Will?

A Will can really only be challenged in a few select situations, namely where there are concerns surrounding the capacity of the testator or it is thought that someone has been able to exert undue influence on them at the time they put their Will in place. Such challenges are not straightforward and involve going to court – they can therefore prove to be costly and uncertain.

You cannot however challenge the terms of a Will simply because they are not as you would wish or expect, as everyone is free to leave their estate to whomever they wish – with one particular exception…

A restriction to testamentary freedom

In Scotland, an individual's spouse/civil partner and children have an automatic entitlement to a share of their estate regardless of the terms of any Will they have put in place. This entitlement is known as "Legal Rights". Legal Rights are not a challenge to the terms of a Will, but rather, if claimed, reduce how much is to be distributed per the terms of the Will.

If someone with an entitlement to Legal Rights is also provided for in the Will, e.g. by way of a legacy in their favour, they must choose to either receive their Legal Rights or benefit per the Will terms – they cannot have both.

Claiming Legal Rights should not be problematic. Executors have a duty to contact all claimants, making them aware of their entitlement and paying the sums due to them if they wish to receive these. It is possible for a claimant to contact the Executor directly to intimate their intention to claim, and the Executor would be obligated to settle the sums due as such a claim is treated as a debt of the estate. If an Executor does not deal with Legal Rights when administering an estate, they could be held personally liable to settle the sums due.

It should also be mentioned that although they have no entitlement to Legal Rights, in Scotland cohabitants can make a claim to share in the estate of their late partner – but this is currently only possible if the partner died without a Will. Unlike Legal Rights, there is no set figure due – instead the cohabitee must make a claim to the court, who will have ultimate discretion as to how much might be awarded depending on various circumstances. This differs from the position in England, where those who are financially dependent on someone in life can claim from their estate even if they are omitted from their Will – this can include children, cohabitants, or as recently seen in the case of George Michael's estate, ex-partners.

Can the terms of the Will be changed?

A Will can be varied post-death via a Deed of Variation.  A Deed of Variation is not a challenge to a Will, but acts to amend its terms. Anyone who is entitled to benefit under the original Will terms and who would lose out under the proposed variation must be party to the deed and agree to its terms.  It may be that everyone entitled under the Will agrees to vary the distribution of the entire estate.  Alternatively, just one beneficiary may decide that they wish to forego their entitlement and pass this on to someone else instead. There are many options available, but someone cannot be deprived of their entitlement via a Deed of Variation unless they actually want this to happen.

Finally, a Will can be rectified after someone's death, to ensure it reflects the testator's intentions – as opposed to the wishes of the potential beneficiaries. This option is only available if the testator died domiciled in Scotland, the Will was drafted by a third party (e.g. a Solicitor) and there is sufficient evidence to satisfy the court that the Will does not reflect the testator's express instructions.

In summary, everyone who is able to do so can leave their estate to anyone they want and should feel safe in the knowledge that their wishes will ultimately be carried out - albeit being aware that Legal Rights may be claimed and reduce how much is left per the terms of their Will, and that beneficiaries always have the option of passing on anything left to them.

Get in touch

If you would like to know more about how to update or change your Will, or you do not currently hold a Will and would like further information on how to make one, please don’t hesitate to get in touch with our private client team.

Useful links

Making a will Scotland