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Overturning a Will - A Quick Guide

f you want to overturn the Will of someone who has passed away then you need to obtain a decree of reduction. An action of reduction can be raised in the Court of Session or sheriff court. It can be tried by a jury in the Court of Session.

A will executed by a person, who at the time, lacked mental capacity is not valid. It will be set aside by the court. To be able to make a will, the testator must be capable of comprehending the nature and effect of what she is doing. A person’s condition can change from time to time. A person may, generally, lack capacity but might have lucid intervals in which the person can understand what he or she is doing. Questions of capacity are for the court, not doctors, but the court will take into account medical evidence. The formal onus of proving capacity is on the person seeking to rely on the will.

The law also recognises the existence of a state known as facility, in which, whilst there is no incapacity to make a will, there is such weakness of mind as to expose the testator to improper practices by interested third parties. Facility may be due to natural disposition, or old age, or ill health. It is not, in itself, fatal to the will but, if, in addition, either fraud or circumvention has been used to obtain the will, it will be set aside.

The court will look at all the circumstances and decide whether a trusted or dominant person has illegitimately caused the testator to make or change a will. Illegitimate pressure need not come from someone acting in his own interests. It need not be in bad faith. The pressure can be applied inadvertently. The involvement in the preparation of a will by a prospective beneficiary is sometimes regarded as a suspicious circumstance in cases where undue influence or misrepresentation is suggested.

An example of one of these cases is Smyth v Romanes’s Executors. The pursuer’s position, looking to have the will set aside, was that the testator was not of sound mind when she revised her will, or was put upon by others in whom she trusted, or that she was forced or persuaded, in her weakened condition, to do things which she would not otherwise have wanted to do. Lord Glennie decided that, although she was unwell, and may not have reflected as thoroughly as she might have done when younger, the testator knew what she was doing. He refused to reduce the will.

That a person is, for instance, in the early stages of dementia does not necessarily mean that she does not know what she is doing. Whether she does depends, amongst other things, on the complexity of the will. When deciding cases of this kind, the court will consider

what motives and reasons the testator had for changing her will and what motives those who are said to have made her change it might have had. Whether the testator has had independent legal advice is a factor.

In the English case of In Re Key where it was held that the testator was in such grief at the loss of his wife of several decades that at time he created a new Will that it amounted to a lack of capacity. As he was devastated, rather than just merely upset, by his bereavement. The expert witnesses in that case agreed that the bereavement constituted an affective disorder and that he did not have the capacity to enter into the Will at the time. The Will was reduced. The take away from this case is that great care should be taken when taking will instructions shortly after a death which may lead the person to be devastated rather than just upset.

If the Will is reduced either the old will (if there is one) is revived and if there was no former Will then the estate will proceed as intestate.

If you would like help overturning a Will then please contact Michael Hughes on 0333 242 0316.

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