Changing or challenging a will in Scotland

Following the recent blog post about making a will, I thought it would be useful to look at the options open to anyone who is looking to make changes to a will or to challenge the will of a deceased person.

If you need to make changes to your will then your options depend on how significant those changes are. Minor changes to a will such as updating the address of an executor or beneficiary can be made by a note on the file and most solicitors, including Fulton’s, will provide this service free of charge.

More substantive changes, such as removing a beneficiary, require a codicil (essentially a document which amends a will) to be prepared. A codicil will incur a fee, although it works out far cheaper than creating a new will.

The codicil must also be both signed by the person who made the will and witnessed in the same way as the original will was witnessed, although the witness does not have to be the same as for the original.

There is no limit to how many codicils can be added but if a complicated change is needed, for example a main beneficiary has died and there are substantial assets that need to be redistributed among the other beneficiaries, it is usually advisable to have a new will drawn up.

If a person passes away without making a will then they have died ‘intestate’. This means the estate will be distributed according to a set of rules in the Succession (Scotland) Act 1964, which will not necessarily reflect the wishes of the deceased.

In this scenario, it may be necessary to apply to the Sheriff Court to appoint an executor and a solicitor will have to prepare the forms for the court to appoint the executor. This process isn’t always straightforward and can lead to tension between family members and others involved.

There are other scenarios in which those close to the deceased may find themselves in the courts.

Unmarried couples or those who have not registered a civil partnership do not automatically inherit from each other when one partner dies unless there is a will.

The surviving partner can make a claim for reasonable financial provision from the estate. An application must be made to the court under Section 29 of the Family Law (Scotland) Act 2006 within six months of the date of death. The court has the discretion to determine what the surviving partner may claim, however this cannot exceed what a surviving spouse would be entitled to.

It is possible for a spouse, civil partner and children (and their descendants) of the deceased to challenge a will if they believe they have not been adequately provided for, however a beneficiary who is not a relative and does not have legal rights defined by law cannot contest the distribution of assets in a will.

There are also various legal avenues, not solely restricted to relatives of the deceased, which allow the validity of a will to be challenged, for example if it can be proved that the deceased was subjected to undue influence, or that a beneficiary has been guilty of fraud

At Fulton’s we have many years of experience helping our clients make changes to a will and resolving some of the more complex issues outlined above that can arise when a loved one passes away.

Get in touch with us today to discuss how we can assist.

By Lauren McGhie, Trainee Solicitor

Give us a call on 0141 632 2248

© Fulton’s Solicitors & Estate Agents – 2019

Fulton’s, 1087 Cathcart Road,
Mount Florida, Glasgow, G42 9XP
T: 0141 632 2248
F: 0141 649 0301

Fulton’s, 4 Howie Buildings,
Mearns Road, Clarkston, Glasgow, G76 7ET
T: 0141 621 1816
F: 0141 621 1820

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