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Disputing a Will
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Contested Will In Scotland - Validity Issues
Avoiding A Contested Will:
A host of rules and regulations dictate the requirements for a valid, legally enforceable will. There is no shortage of ways in which an individual unhappy with the terms of a will can dispute the document in a contested will action in a Scottish court. A poorly drafted document can easily fail to distribute all of the testator's assets in the manner the testator intended. This fact is evidenced by the good living plenty of solicitors make in Scotland by sorting out badly drafted DIY wills. Without help from a qualified and experienced solicitor, you can wind up with a will that defeats your intentions often leading to a contested will action.
Properly Executed Wills:
Anyone planning legal action for a contested will in Scotland should first look to whether the document was properly executed. The requirements for executing a will are black and white: either they were fulfilled or they weren't. There is no in between. Failure to comply with any of the requirements, no matter how small the mistake might seem, usually invalidates the entire will and opens the door for a contested will case. If the current will is invalid, then a Scottish court may accept an earlier will in its place. If there is no prior valid will to fall back on, then the rules of intestacy come into play. These rules list out the relatives, in order of priority, that have a claim to the estate. The outcome of the application of the intestacy rules may or may not reflect what the testator wanted. When a testator leaves behind no qualifying relatives, the entire estate may be handed over to the government.
Requirements To Avoid A Contested Will:
Those who make a DIY will in Scotland often mistakenly believe that executing the document is as simple as a signature and a couple of witnesses. In reality, the laws are much more complicated than that and the execution of a will is the most fertile area for disputing its validity in a contested will action before the Scottish courts. A valid will must satisfy all of the following conditions:
- the testator must be a person over 12 years in age
- the testator must create the document under their own free will, with no undue influence, such as threats or coercion, from another person
- the testator must be mentally sound and must not suffer from any incapacities that prevents them from comprehending the full meaning of the document
- the testator must sign the document in the presence of two witnesses who must then also sign the document. Another legally acceptable option is for the testator to sign the will beforehand and acknowledge this signing in the presence of the two witnesses.
- neither of the witnesses to the signing of the will should be a beneficiary. A beneficiary who also acts as a witness will lose any bequests made to them under the terms of the will.
Dependents of the Testator:
The dependents of the deceased have a right to continued support. Dependents are often minors, spouses or a mentally disabled person. Sometimes a testator does not adequately provide for a dependent in their will. In these cases, the dependent may bring a contested will action in a Scottish court based on their prior claim to the estate. These dependents are typically successful in convincing the court that they are entitled to the same level of support as was previously provided by the deceased. Any beneficiary planning to object to an action brought by a dependent is strongly advised to seek the assistance of a solicitor.
Lost or Destroyed Wills:
If a will is lost or accidentally destroyed, the assumption is that the deceased testator intentionally destroyed the will prior to their death as a means of revoking it. This assumption can be overcome with evidence to the contrary. Potential beneficiaries can challenge the assumption in court by presenting a copy of the lost or destroyed will and evidence supporting their claim that the original will was truly lost or was accidentally destroyed.