A Tale of Two Wills: Why How You Make It Matters as Much as What It Says
Two Scottish court decisions from this year tell almost the same story and end in opposite ways. In each, a Will was challenged after the person who made it had died. In each, the argument was that the Will did not really reflect what that person wanted, and that someone close to them had taken advantage. One challenge succeeded and the Will was set aside. The other failed, after a full hearing, and the Will stood. What separated them was not luck. It was, in large part, how each Will had been made.
The homemade Will that did not survive
The first case is Scott v Reeves [2026] SC GLA 57, decided at Glasgow Sheriff Court by Sheriff A F Deutsch.
Mrs Ruby Scott died in March 2021 at the age of 77. She had been diagnosed with vascular dementia in September 2018 and, by the period in question, was physically frail, anxious and experiencing episodes of confusion. She had made a perfectly clear Will in October 2011, professionally drawn, dividing her Glasgow home equally between three of her children.
One exchange from her final years matters more than any other. On 4 December 2018 the deceased’s GP spoke by telephone to the daughter who was arranging a Power of Attorney for her. Because the deceased now had a diagnosis of dementia, the GP explained, a psychiatrist would need to carry out a formal capacity assessment. The GP went further, and warned that a GP’s own view of the deceased’s capacity might be challenged by other members of the family in any future dispute over her estate. A psychiatrist’s certificate, confirming that the deceased understood the Power of Attorney she went on to grant, was obtained in February 2019. Keep that date in mind.
After her death a second document came to light. It was a two-page DIY Will form of the kind you can buy online, completed in handwriting. The handwriting was not hers. It belonged to the daughter who by that stage was her principal carer and was managing her finances, and who was also the person the new document most benefited. There had been no legal advice at any stage. On its face it was dated 25 April 2019.
Then came the detail that undid it. The blank DIY form used to create the second Will had not been published until November 2019, so the document could not possibly have been signed on 25 April 2019, the date it bore. When that problem emerged, the first defender’s solicitors said the Will had actually been signed a year later, on 25 April 2020. The sheriff found that account untrue as well, and was satisfied only that the Will had been signed at some point after November 2019. What he did find, and found to be deliberate, was the false date on the Will itself. A Will dated April 2019 appeared to sit just after the February 2019 psychiatrist’s certificate, quietly borrowing its reassurance about the deceased’s capacity. A Will bearing a later and truthful date had no such cover. That, the sheriff concluded, was the purpose of the false date, and it told him the first defender had understood that something irregular had taken place.
The sheriff found that Mrs Scott had been facile, meaning her mind was weak and easily imposed upon, and that her daughter had used a position of dominance over both her finances and her care to obtain a Will in her own favour. He ordered production and reduction of the second Will, reduction being the Scottish term for having a deed set aside. The earlier professionally prepared Will stood.
The solicitor’s Will that held firm
The second case is Haq v Irvine [2026] CSOH 45, an opinion of Lord Harrower in the Outer House of the Court of Session, issued in May.
Abdul Haq was diagnosed with metastatic cancer in November 2021 and told he might have only months to live. He died on 31 March 2022. Shortly after the diagnosis he had conversations with his adult sons from his first marriage which gave them to understand that he intended to make a Will from which they would benefit. In February 2022 he did make a Will, but it left the entire residue of his estate to his second wife and the two young children of that marriage.
His four adult children raised an action of production and reduction on the grounds of facility and circumvention and undue influence. It was accepted on all sides that their father had testamentary capacity. Their case was that he had been worn down by illness and was in no state to resist pressure.
The action failed, and the reasons why are instructive.
The solicitor who prepared the Will had acted for the deceased for years, including through a long and difficult divorce settlement. He attended at the house, found his client physically frail but mentally alert, coherent and capable of giving clear instructions, and recorded the reasons he gave for the decision. There were three meetings in total, which the solicitor said was more than would usually take place. The instructions were consistent on each occasion.
Two further precautions mattered a great deal. The deceased had no difficulty communicating in English, but his first language was Urdu, so a colleague who spoke Urdu attended and interpreted the terms of the Will for him before he signed, expressly to remove any possible language-based challenge later. And immediately after the signing, the solicitor completed a written capacity and undue influence checklist confirming that he had no concerns on either count.
Lord Harrower found the deceased to have been resolute, independent and resistant to control by others. He noted that the deceased had been shrewd enough to instruct his own solicitor rather than the firm one of his sons had wanted him to use, and that his insistence that no paper copy of the Will be left in the house, in case his children found it, displayed what the judge called a significant degree of mental acuity. He also observed that the deceased spent his final weeks living in the care of the very children who were challenging the Will, and never revoked it.
The conclusion was that Scots law gave the deceased the freedom to dispose of his estate as he saw fit, regardless of his children’s expectations, and that the Will reflected his true intentions.
What it takes to challenge a Will in Scotland
Scots law allows you to leave your estate broadly as you wish, subject to the legal rights that a surviving spouse or civil partner and children have in the net moveable estate. But it also guards against Wills produced by taking advantage of someone. Challenges are brought by way of an action of production and reduction, and two grounds do most of the work.
Facility and circumvention requires three things: that the person was weak and facile, that they were pressured into making the Will by acts of circumvention, and that harm resulted. The three are looked at together rather than in isolation, and where facility and circumvention are made out there is no need to prove harm separately. The fact that the Will was made in those circumstances is treated as harm enough.
Facility is a spectrum rather than a switch. A robust person will usually be able to resist pressure, or at least decide whether they want to. A facile person may not. And the pressure itself need not be dramatic. It can be direct and overpowering at one extreme, or quiet, persistent and insidious at the other.
Undue influence requires a relationship creating a dominant or ascendant influence, trust arising from that relationship, a material and gratuitous benefit to the prejudice of the person making the Will, and, critically, the absence of independent advice.
Led, but not driven
There is a phrase used in this area that captures the test rather well. A testator may be led, but not driven. The Will must be the offspring of the testator’s own volition.
The courts also recognise that undue influence is inherently less likely in the case of Wills than in lifetime transactions, because someone hoping to benefit under a Will is far more likely to rely on affection, gratitude or ordinary persuasion than on coercion. The circumstances therefore have to make undue influence more probable than any other explanation. If another explanation is equally likely, the challenge fails.
That is a high bar, and it is why so much turns on the evidence available at the time the Will was made rather than on how the family feels about the outcome afterwards.
Why one Will failed and the other did not
Put the two cases side by side and the decisive factors stand out.
In Scott there was no solicitor, no independent advice and no objective record of what Mrs Scott understood or wanted. The only person guiding the process was the person who benefited from it, and the document itself carried a date that could not be true. When the Will was challenged there was nothing to weigh against the evidence of her vulnerability and her daughter’s control.
In Haq there was a professional in the room whose job was to test understanding, take instructions directly, and make a written record at the time. When the family alleged pressure, the solicitor’s notes, the checklist, the consistency of the instructions across three meetings and the evidence of the nurse and social worker involved in his care supplied precisely the independent evidence a court needs. The Will was still challenged, and the family took it all the way to a proof, but it withstood the challenge because the process had been done properly.
It is worth being honest about one thing. Instructing a solicitor does not make a Will impossible to challenge. The courts have been clear that 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 starts from a very much stronger position than one that has not.
Does the beneficiary have to leave the room?
This question comes up often, and Haq answers it more clearly than most cases do.
The wife who benefited was present at the meetings. The court held there is no rule of law or practice requiring a testator to be seen alone. The situations where a person must be advised separately, such as a spouse granting security over the family home for the other’s borrowing, arise from an obvious conflict of interest, and there is no equivalent conflict where one spouse simply makes a Will in favour of the other.
That said, the judge accepted there may well be circumstances in which a testator should be advised in the absence of the beneficiary, and pointed to an earlier case where a solicitor was criticised for not doing so, in a situation where the file already recorded concerns about the testator’s health and dependence, and the beneficiary had taken part in the call when instructions were given.
The practical answer, then, is that it depends. What matters is that whoever is taking the instructions is alive to the question and exercises judgment about it, and records that judgment. That is exactly the sort of thing that cannot happen when a form is filled in at the kitchen table.
A familiar thread
Readers of our last edition will spot a pattern. We wrote then about two cases separated by 135 years: the 1890 decision arising from the estate of William Munro, the founder of this firm, where pencil alterations to a Will were held to be deliberations rather than a concluded testamentary intention, and the 2025 Falkirk case of Boyd v Boyd, where a letter that the court found had never actually been sent, and was never even intended for the solicitors who held her Will, could not be given effect. You can read that article here.
The thread running through all four cases is the same, and it has held for well over a century. Scots law asks not only what you meant, but whether you expressed it properly and whether there is anything to show it. Informality is where estates come unstuck, whether the informality lies in a pencil marking, an unposted letter or a form bought online and filled in by somebody else.
When Wills are most likely to be challenged
Certain circumstances attract challenges more than others, and they are worth recognising because they are also the circumstances in which careful process matters most:
Second marriages and blended families, particularly where children from a first marriage receive less than they expect
Leaving more to the person who provides your care than to your other children
Making changes at a time when your health is failing
Falling out with one child and reducing or removing their share
Any Will made without advice where the main beneficiary was closely involved in arranging it
None of these is a reason not to do what you want with your own estate. Both of these cases turned on process rather than on whether the outcome looked fair, and in Haq the court was explicit that a person’s freedom to dispose of their estate does not bend to what their family expects. They are reasons to do it properly, so that your wishes hold.
How Stewart & Bennett can help
Our Wills and executries work is a substantial part of what we do. We take time to understand what you actually want, explain the options without jargon, and keep proper records so that your Will is as robust as it can reasonably be made. Where the circumstances are sensitive, whether that involves a second marriage, a family disagreement or concerns about health, we know how to put your intentions beyond reasonable argument.
We also advise families on the other side of these situations, where there are honest concerns that a Will does not reflect what someone truly wanted. And if capacity is a live worry for a relative, a power of attorney put in place while there is still time is one of the most useful documents a family can have.
We are at 82 Argyll Street in Dunoon, and you are very welcome to get in touch for a confidential conversation. A little care now saves a family a great deal later.
Frequently asked questions
Can I be disinherited entirely in Scotland?
Not completely. A surviving spouse or civil partner and children have legal rights in the net moveable estate, which cannot be defeated by a Will. Heritable property such as a house is treated differently, which is why in Haq the court noted that the second wife would have received relatively little under the earlier Will, the estate being tied up largely in heritable property. It is worth taking advice on how this applies to your own circumstances.
What does it mean to reduce a Will?
Reduction is the Scottish legal term for having a deed set aside by the court. If a Will is reduced, the estate is normally dealt with under the previous valid Will, or under the rules of intestacy if there is not one. In Scott, reduction meant the earlier professionally drawn Will took effect.
Is a DIY Will valid in Scotland?
It can be, if it meets the formal requirements. The difficulty is not usually validity, it is what happens when someone questions it. A homemade Will comes with no independent evidence of what you understood or intended, which is exactly what a court looks for.
Does the person benefiting have to leave the room while I give instructions?
There is no rule requiring it, and in Haq the court confirmed as much. But there are circumstances where it is the right thing to do, and part of what you are paying a solicitor for is the judgment to know which situation you are in.
How long do I have to challenge a Will?
There is no single deadline covering every case, but delay is fatal to a great many challenges in practice. Evidence gets harder to gather, memories fade and the estate may already have been distributed. Take advice promptly.
Does using a solicitor guarantee my Will cannot be challenged?
No, and anyone who tells you otherwise is overselling. The Will in Haq was challenged all the way to a full hearing in the Court of Session. What proper advice does is put your Will in a far stronger position to survive that challenge, because there is a professional record of your capacity, your instructions and your understanding.