Facility and circumvention: a high bar

Challenging a will, or any other document for that matter, is not an easy task, but it is one that clients are enquiring about more than ever before.

To challenge a document successfully, it must first be established whether the grantor had capacity, which is not always easy to ascertain given the scope of the definition in the Adults with Incapacity (Scotland) Act 2000.

Where there is diminished capacity, there may be scope for reduction of a deed by virtue of facility and circumvention. Three requirements always need to be met for this:

• the testator needs to be facile or easily imposed upon;
• there needs to have been circumvention or fraud; and
• the claimant must have suffered harm.

The requirements are interrelated and should be looked at collectively. The case of O'Neil v O'Neil 2017 GWD 22-361 shows the difficulties in trying to prove facility and circumvention. Here son 3 of the testator raised an action to reduce a disposition that the deceased had granted to herself in liferent and to sons 1 and 2 in fee. She had later made a will, also in favour of sons 1 and 2. Son 3 had made financial contributions to the deceased's property and she had made comments to him and son 4 that she wanted to protect his position. Notwithstanding the mixed messages and the fact that the deceased had not favoured her sons equally, the disposition was allowed to stand. To successfully reduce a document there needs to be convincing evidence led of all three constituent parts.

Where appropriate, it is important for professionals to manage expectations of clients who wish to challenge documents and advise them accordingly of both the potential for success and the cost implications of failure.