Same goal, very different results
Two recent Scottish court decisions tell almost the same story, yet they end in opposite ways. In each case, a will was challenged after the person who made it had died. In each case, the argument was that the will did not really reflect what that person wanted, and that someone close to them had taken advantage. In one case the challenge succeeded and the will was set aside. In the other it failed, and the will stood.
What separated them was not luck. It came down, in large part, to how each will was made. One was a homemade document filled in by hand by the very person who stood to benefit from it. The other was prepared by an experienced solicitor who kept careful records. That single difference shaped everything that followed.
For anyone thinking about making or updating a will, these two cases are a useful and very human reminder that a will is only as strong as the process behind it.
The homemade will that did not survive
The first case concerned an elderly woman in the west of Scotland who had been diagnosed with vascular dementia. By the time the disputed will appeared, she was physically frail, anxious, and experiencing episodes of confusion. She had made a perfectly clear will some years earlier, professionally drawn up, which divided her home between three of her children.
A second will then surfaced. It was a printed “DIY” form, the kind you can buy online, completed in handwriting. The handwriting was not hers. It belonged to one of her daughters, who by that time was her main carer and was managing her finances, and who happened to be the person the new will most benefited. There had been no legal advice. To make matters worse, the court found that the document had been deliberately misdated to make it look as though it had been signed at a time when the mother’s capacity had been formally assessed for an unrelated matter.
The Sheriff concluded that the mother had been “facile”, meaning her mind was weak and easily influenced, and that the daughter had used her position of control to obtain a will in her own favour. The will was reduced, which is the Scottish legal term for having it set aside. The earlier, professionally prepared will was restored.
The solicitor’s will that held firm
The second case involved a terminally ill man who, after a cancer diagnosis, made a new will leaving his estate to his second wife rather than to his adult children from his first marriage. After his death, those children went to the Court of Session to have the will reduced. They argued that their father had been worn down by illness and pressured by his wife into cutting them out.
The difference here was the process. The will had been prepared by a very experienced solicitor who had acted for the man for years. The solicitor met him more than once, took instructions that were consistent each time, used an interpreter so there could be no doubt the man understood, and completed a written checklist recording that he had no concerns about capacity or undue influence. The beneficiary was present but did not give the instructions or interfere.
Faced with that evidence, the court found that the man had been strong-minded and clear about what he wanted, that the will reflected his true intentions, and that there was no reliable evidence anyone had poisoned his mind against his children. The challenge failed and the will was upheld.
What does challenging a will in Scotland involve?
Scots law lets you leave your estate broadly as you wish, subject to certain protected rights for spouses, civil partners and children. But the law also guards against wills that are produced by taking advantage of someone. There are two main grounds on which a will can be challenged after death.
The first is facility and circumvention. This applies where the person making the will had a weak or vulnerable mind, often through age, illness, grief or conditions such as dementia, and where someone applied improper pressure to take advantage of that weakness. The pressure does not have to be dramatic. It can be quiet and persistent rather than forceful.
The second is undue influence. This arises where someone in a position of trust and dominance over the person making the will abuses that position for their own benefit. Here, one factor matters more than almost any other: independent advice. Where a vulnerable person makes a will favouring someone who holds power over them, and they did not have independent legal advice, a court may well infer that undue influence was at work unless there is clear evidence to the contrary.
Importantly, a court does not need proof of separate financial loss in these cases. The fact that a questionable will was made at all is treated as harm enough.
Why one will failed and the other did not
Put the two cases side by side and the decisive factors stand out clearly.
In the homemade case, there was no solicitor, no independent advice and no objective record of what the woman actually understood or wanted. The only person guiding the process was the person who benefited from it. When the will was challenged, there was nothing to set against the evidence of her vulnerability and her daughter’s control.
In the solicitor’s case, the will-maker had a professional in the room whose job was to test his understanding, take his instructions directly, and keep a written record at the time. When the family alleged pressure, the solicitor’s contemporaneous notes and checklist provided exactly the independent evidence a court needs. The will was still challenged, and the family pursued it all the way to a full hearing, but it withstood that challenge precisely because the process had been done properly.
It is worth being honest about one thing. Using a solicitor does not make a will impossible to challenge, and the quality of the advice matters, not simply the fact that a solicitor was involved. But a will that has been properly advised on, properly explained and properly documented is in a far stronger position than one that has not.
What this means for you
The practical lessons are straightforward.
If you are making or changing a will, take proper legal advice. A homemade form might save a little money today, but it provides none of the protection that becomes so valuable if anyone later questions what you intended.
Be especially careful in the situations these cases highlight. Second marriages and blended families, falling out with one child, leaving more to the person who cares for you, or making changes at a time when your health is failing are all circumstances where a will is more likely to be questioned later. These are exactly the moments when a clear, well-documented process protects both you and the people you love.
Finally, review your will when your circumstances change. An old will that no longer reflects your wishes can cause as much difficulty as no will at all.
How maloco mowat parker can help
At maloco mowat parker, our Private Client team prepares wills the right way. We take the time to understand your wishes, we explain your options clearly and without jargon, and we keep proper records so that your will is as robust as it can be. Where circumstances are sensitive, whether that involves a second marriage, a family disagreement or concerns about health, we know how to put your wishes beyond reasonable doubt.
We also advise families on the other side of these situations, where there are genuine concerns that a will does not reflect what a loved one truly wanted.
Based in Dunfermline and serving clients across Fife and beyond, we are here to help you get it right the first time. To arrange a confidential discussion, contact Stacey Parker on 01383 629 720, visit us at 6-8 Bonnar Street, Dunfermline, or get in touch using the contact form on our website. A little care now can save your family a great deal later.