Breaching a Contact Order in Scotland: What a Recent Glasgow Case Tells Us

A Sheriff has jailed a mother for seven days after she stopped her twelve-year-old daughter seeing her father for more than a year. The order she broke was one she had agreed to herself. She never asked the court to change it, and her only explanation was that her daughter no longer wanted to go. That, the Sheriff held, came nowhere near a defence. Breaching a contact order in Scotland is contempt of court, and this decision sets out very plainly what the courts expect of the parent a child lives with.

Contact arrangements come under strain in all sorts of families, and usually for perfectly understandable reasons. Work patterns change. Children get older and busier. One parent moves away. Most of these problems get sorted out between the parents, sometimes with a little help.

Occasionally, though, a case reaches court that shows what happens when a parent simply stops complying and hopes the whole thing will go away. Breaching a contact order is not a technicality, and the Glasgow case below shows exactly why.

What happened in the Glasgow case

The judgment has been anonymised to protect the child, so the parties appear as Charlie Foxtrot and Delta Echo. You can read the full judgment on the Scottish Courts website. The names do not matter. The principles apply right across Scotland, including here in Fife.

A father held a contact order giving him time with his daughter three times a week. The order dated from June 2023, and for nearly two years it worked beautifully. He took her on day trips. She asked to start staying overnight once he bought a bigger house, and had a sleepover there with four of her friends. She was close to her paternal grandparents, aunt and cousins. Father and daughter spoke on the phone most nights.

Their last contact session was a Thursday in April 2025, a day out at Luss on Loch Lomond with three of her pals. She hugged him goodbye and messaged him cheerfully that evening asking for the photographs.

Then it stopped. Over the following fourteen months, the child missed more than 150 contact sessions.

The mother’s position was that her daughter no longer wished to see her father. The Sheriff found she had done a great deal more than passively accept that. She booked a dance competition over a contact weekend. She collected the child from school early to stop handovers. On one occasion she pulled her daughter out of her father’s car by the arm, in the school car park, shouting. She had him removed from the school’s mailing list and emergency contact list. She blocked his calls and messages. She moved house and enrolled the child at a different secondary school without telling him.

Sheriff Reid found her in contempt of court. He described her disregard of the order as deliberate and prolonged, and the contempt itself as “protracted, brazen and entrenched”. A fine was not realistic, since she is self-employed on a modest income and already owed her ex-partner a substantial sum in expenses. He ordered seven days’ imprisonment.

The contact order she breached was one she had agreed

This is the detail most reports of the case leave out, and it is arguably the most important one.

The order was not imposed on an unwilling mother after a fight. She had defended the original action for two years, with legal advice throughout. Then, in April 2023, she signed a joint minute agreeing the contact arrangements. The Sheriff simply gave effect to what the parents had settled between them.

That matters, because many people assume an agreed order is somehow softer than a contested one. It is not. Once the court interpones authority to a joint minute, the result is a court order like any other. Breaching a contact order carries precisely the same consequences whether a Sheriff imposed it or you signed up to it. If you agree terms today, you are bound by them tomorrow.

What the law actually asks of the resident parent

Here is the principle that surprises most parents. Under Scots law, the parent a child lives with does not merely have to allow contact. They have a positive duty to encourage, promote and facilitate it.

That duty goes back to Blance v Blance in 1978, where a father used to tell his children that anyone who wanted to go should put their coat on. The court held that this was not good enough. The parent with care must persuade, encourage and, where necessary, firmly instruct the child to go, stopping short only of physical force.

The courts describe this as using both the carrot and the stick. With an older child it means reasoning and argument rather than simply giving in. As one senior judge put it, parenting can be a very big ask — but getting a child to do something they would rather not do, whether that is homework, the dentist or contact with a parent, is the job.

Why “she didn’t want to go” was not a defence

A child’s views genuinely do matter. Under section 11 of the Children (Scotland) Act 1995, the court must give a child the chance to express a view and must weigh it according to age and maturity. Parliament went further in the Children (Scotland) Act 2020, though several of its key provisions on children’s views have still to be brought into force.

So the Sheriff was not brushing the girl aside. He drew a much sharper distinction than that. The question in contempt proceedings is not what the child now wants. It is what the resident parent actually did to encourage, promote and facilitate the relationship the court had ordered. A child’s reluctance, on its own, does not excuse breaching a contact order.

On that, the evidence was thin. On her own account, all the mother had done was ask her daughter every couple of weeks whether she fancied seeing her dad, then accept the answer. The Sheriff called that woefully inadequate.

He went further still. A letter arrived from solicitors acting for the child, confirming she did not want contact. He gave it no material weight. It had not been tested in evidence, it offered no rational explanation for such a sudden change of heart, and he considered it unreliable — the product of a prolonged course of parental alienation and a child’s understandable wish to keep the peace with the parent she lives with.

When you genuinely can stop contact

None of this means contact must always continue whatever happens. The law recognises real exceptions.

Where there is a genuine risk of harm to the child, or to the resident parent, a parent may well have a reasonable excuse for not complying. Safety comes first, always. The difficulty here was that no such risk was ever suggested, never mind proved.

Even a genuine concern does not entitle you to stop contact yourself, though. The lawful route is to go back to court and ask for the order to be varied or suspended. This mother never did. She never lodged a minute seeking any change. She never contacted the father to explain a concern or propose an alternative — not even letterbox contact. The first time she said in writing that the child was unwilling was in her formal Answers, eight months after contact had stopped.

What breaching a contact order in Scotland can cost you

Contempt is treated as quasi-criminal, so it must be proved beyond reasonable doubt. That is a high bar, and rightly so. Once it is cleared, however, the consequences of breaching a contact order are very real.

• Imprisonment or a fine. In the sheriff court, the maximum penalty under section 15 of the Contempt of Court Act 1981 is three months in prison, a fine of up to £2,500, or both. In the Court of Session it rises to two years.
• Expenses. This mother was found liable for her ex-partner’s legal costs on four separate occasions, including the cost of a proof diet discharged at her own request.
• Time. Contact stopped in April 2025. The imprisonment was ordered in June 2026. That is fourteen months of a child’s life.
• Procedure. The father’s first attempt actually failed. He lodged a minute in the original case file, but that action had already concluded, so the minute was incompetent and was dismissed. He had to start again with a fresh summary application, losing three and a half months.

That last point is worth dwelling on. Enforcement is not simply a matter of telling the court that someone has misbehaved. Getting the procedure right at the outset saves months, which is why early advice matters so much.

If contact is breaking down, here is what to do

If you are the parent being denied contact:

• Keep a dated note of every missed session, including where you went and what happened.
• Save the messages. In this case, WhatsApp threads did much of the evidential work.
• Put things in writing rather than relying on phone calls.
• Keep paying child maintenance. Contact and maintenance are separate obligations.
• Ask about mediation. Relationships Scotland runs family mediation services nationwide.
• Take advice early, before positions harden.

If you are the parent with concerns about contact:

• Raise the concern with the other parent in writing, and keep a copy.
• Do not stop contact and wait to be challenged. That is how parents end up breaching a contact order without ever intending to.
• Offer an alternative, even a reduced or indirect one, while things are sorted out.
• If agreement proves impossible, apply to the court to vary or suspend the order.
• Check whether you qualify for help with fees through the Scottish Legal Aid Board.

Whichever side you are on, the underlying message is the same. The order stands until a court changes it.

Why choose Morgans

Morgans has looked after families across west Fife and Kinross-shire since 1993, from our offices in Dunfermline and Kinross. Our family law team advises on residence and contact for children, separation and divorce, financial provision and separation agreements.

Disputes about children are rarely just legal problems. They are among the hardest things a family will go through, and the temptation to take matters into your own hands can be overwhelming. Our job is to keep you on the right side of that line while we sort out the substance.

Where agreement is possible, we will help you reach it and record it properly — our article on the advantages of a separation agreement explains why that is usually the better route. Where court action is unavoidable, our court team will handle it. Our fees are explained and agreed at the outset, and you deal with the same people from start to finish.

Talk to our family law team

If you are being kept from your child, or you have real worries about an existing order, the worst thing you can do is nothing. The second worst is to act on your own and risk breaching a contact order yourself. Come and talk it through with us first.

Dunfermline Office — Morgans, 33 East Port, Dunfermline, Fife, KY12 7JE · 01383 620222 Kinross Office — Morgans, 62 High Street, Kinross, KY13 8AN · 01577 863424

Email enquiries@morganlaw.co.uk or use the contact form on our website. You are also welcome to meet the team before you get in touch.

Frequently asked questions

Can you go to prison for breaching a contact order in Scotland?

Yes, though it remains a last resort. A contact order is a court order, and deliberately disobeying it is contempt of court. In the sheriff court the maximum penalty is three months’ imprisonment, a fine of up to £2,500, or both. Prison is reserved for breaches that are wilful, prolonged and without reasonable excuse, as in the Glasgow case. Most contact disputes are resolved long before this point, particularly where advice is taken early.

What counts as contempt of court in a child contact case?

Contempt means deliberately disobeying a court order. The Sheriff must be satisfied beyond reasonable doubt that the parent knew the terms of the order, breached it without reasonable excuse, and knew the facts that made their conduct a breach. Importantly, doing nothing can amount to breaching a contact order. A parent who simply leaves the decision to the child is not complying.

My child says they do not want to see their other parent. What should I do?

Take it seriously, but do not stop contact. You have a legal duty to encourage, promote and facilitate the relationship, which means persuading and, if need be, firmly instructing your child to go. Record what you have tried. If you have genuine welfare or safety concerns, take advice and apply to the court to vary the order. Stopping contact yourself is what exposes you to enforcement action.

Does a contact order still apply if my circumstances have changed?

Yes. A contact order stays in full force until a court varies or suspends it. New job, new partner, new address, new school — none of these change the order. You can agree a variation with the other parent and have it recorded properly, or you can apply to the sheriff court. Until one of those things happens, the existing order stands.

What if the order was agreed rather than decided by a Sheriff?

It makes no difference. Once the court gives effect to a joint minute, the resulting decree is a court order in the ordinary sense, and breaching a contact order agreed in that way is treated exactly the same. The mother in the Glasgow case had agreed her order after two years of legally advised negotiation, and it did not soften the outcome one bit.

How long does it take to enforce a contact order?

Longer than most people expect. In the Glasgow case, fourteen months passed between contact stopping and the penalty being imposed, and part of that delay came from an application made the wrong way at the first attempt. Straightforward cases move faster, but this is one of the strongest arguments for taking proper advice at the very start rather than several months in.

Contesting a Will in Scotland: Three Rulings, Three Lessons

Contesting a Will in Scotland is possible, but it is rarely straightforward. Three recent decisions of the Scottish courts show exactly where the line falls. A homemade Will, filled in by the daughter who stood to gain from it, was set aside after more than three years of litigation. A solicitor-drafted Will survived a full proof in the Court of Session. And a letter found among a woman’s papers after her death was held to change nothing at all. If you are thinking about making or updating a Will, the message from all three is the same. How you do it matters just as much as what it says.

Most families never end up in court arguing about a Will. When they do, though, the dispute is slow, painful and expensive — and the legal costs come out of the very estate everyone is fighting over. Relationships rarely recover.

Scots law has allowed Wills to be set aside for centuries. The courts will intervene where someone was vulnerable and another person took advantage. What has changed recently is how clearly the judgments spell out the reasoning. Three cases in particular are worth understanding, because between them they cover almost every way a Will can come unstuck.

The DIY Will that did not survive

The first is Scott v Reeves [2026] SC GLA 57, decided at Glasgow Sheriff Court by Sheriff A F Deutsch and handed down in December 2025. The full judgment is published by the Scottish Courts and Tribunals Service, and the case was also reported by Scottish Legal News.

Mrs Ruby Scott died on 14 March 2021, aged 77. She had been diagnosed with vascular dementia in September 2018, and by the relevant period she was very physically frail, suffering intermittent episodes of delirium and experiencing significant anxiety. In October 2011 she and her husband had instructed solicitors, and her Will left her Glasgow home equally to three of her five children.

After her death a second document appeared. It was a two-page printed DIY Will form, completed by hand — but not in her handwriting. It had been filled in by the daughter who was by then her principal carer and was managing her finances, and who was also the person it most benefited. She received no legal advice at any stage.

Then came the detail that unravelled it. The document bore the date 25 April 2019. But the blank form used was not first published until November 2019, so it could not possibly have been signed when it said it was. The daughter’s solicitors later stated the date had in fact been 25 April 2020.

Why would the year matter so much? Because in December 2018 the deceased’s GP had told that same daughter she would need a formal capacity assessment from a psychiatrist before her mother granted a Power of Attorney — and warned her, in terms, that other family members might question a GP’s view in any future dispute over the estate. The Power of Attorney was duly signed in February 2019 with a consultant psychiatrist’s certificate attached. A Will dated April 2019 would appear to sit comfortably under that certificate. A Will dated April 2020 would not.

The sheriff found the choice of date was deliberate, and that it pointed to an understanding on the daughter’s part that something irregular had happened.

Two other findings stand out. First, the most persuasive evidence about the deceased’s state of mind came from a third sister who stood to gain nothing under either Will — the sheriff noted she had no stake in the outcome, which is precisely why her account carried weight. Second, on undue influence, three matters were decisive: the daughter’s position of dominance over her mother’s finances and care, the benefit she received under the new Will, and the absence of any independent legal advice. Together, the sheriff held, they raised an inescapable inference.

The second Will was reduced. The 2011 Will stood.

What that DIY form actually cost the family

This is the part of Scott v Reeves that rarely gets reported, and it is the part most worth reading twice.

The action was raised in September 2022. Judgment came in December 2025. In between, the case was paused for eighteen months while investigations were made, apparently including a handwriting expert. Two separate proof diets were fixed and discharged before any evidence was heard. An amendment brought six further defenders into the action, including the daughter’s own children. Counsel were instructed on both sides. Expert evidence came from a consultant in old age psychiatry, the deceased’s GP gave evidence, and the medical records alone ran to 474 pages. Evidence was finally heard over three days spread across September and November 2025, with expenses left to a further hearing.

Three years and three months. All of it flowing from a printed form that cost a few pounds.

The judgment does not record the bill, and it does not need to. Whatever it came to, it was met out of a modest estate consisting largely of one Glasgow house — the same house the family had been arguing about.

The solicitor’s Will that held firm

The second case reached the Court of Session and produced the opposite result. Haq v Irvine [2026] CSOH 45 is an opinion of Lord Harrower in the Outer House, issued on 8 May 2026 after a full proof.

Abdul Haq was diagnosed with metastatic cancer on 3 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 three of his adult sons that led them to expect they would benefit under a new Will. On 11 February 2022 he did make one — and it left the entire residue of his estate to Samina, his second wife.

There was an earlier Will too, made in 2004, which the older children knew nothing about until after his death. It provided for his estate to be divided according to the principles of Islamic law, under which all of his children would have benefited. Had the challenge succeeded, that Will would have revived.

His four adult children sought production and reduction on the grounds of facility and circumvention and undue influence. Everyone accepted he had testamentary capacity. Their case was that illness had worn him down and left him unable to resist his wife’s influence.

The action failed, and the reasons are instructive.

The Will had been prepared by Martin Monaghan, a very experienced solicitor who had acted for Mr Haq through a bitter five-year divorce settlement and in numerous transactions since. He attended at the house, found his client physically frail but mentally alert, coherent and capable of giving clear instructions, and recorded the reasons given. There were three meetings in all — more, the solicitor said, than would normally take place. The instructions were consistent every time.

Two further precautions mattered enormously. Mr Haq had no difficulty in English, but his first language was Urdu, so an Urdu-speaking colleague attended and interpreted the terms of the Will before he signed — expressly to eliminate any language-based challenge later. And immediately after signing, the solicitor completed a written capacity and undue influence checklist confirming he had no concerns on either count.

The independent evidence pointed the same way. The palliative care nurse recorded no cognitive impairment and no capacity issues. Asked whether Mr Haq was someone who would be vulnerable to influence, the social worker overseeing his care answered, firmly, that he was not.

Lord Harrower found the deceased to have been <q>resolute, independent, and resistant to control by others</q>. He had been astute enough to instruct his own solicitor rather than the firm one of his sons preferred. He asked for the Will to be emailed rather than left in the house, so that his older children would not find it — which the judge treated as showing real mental acuity. And he spent his final weeks living in the care of the very children who later challenged the Will, without ever revoking it. The pursuers could not explain that.

Scots law gave him the freedom to dispose of his estate as he saw fit, whatever his children expected. The Will reflected his genuine intentions, and it stood.

It is worth adding what that defence involved. The executors who defended the action had no personal stake in the estate whatsoever. They did it because they believed the Will was what their client had instructed. A full proof followed, with ten witnesses, senior solicitors’ firms and counsel on both sides, and expenses still to be determined. A Will made properly is far more likely to survive a challenge — but it does not stop one being brought.

The letter that changed nothing

The third case is Boyd v Boyd [2025] SC FAL 102, decided at Falkirk Sheriff Court by Sheriff Christopher Shead in August 2025 — in the same sheriffdom that covers Dunfermline and Kinross. The judgment is available here.

Isabel Boyd made her Will in September 2002 and died in January 2023. Her two daughters had been estranged from each other, and one of them from their mother, since 2006.

After the death, one daughter found a single-page copy of a handwritten letter dated January 2009 among her mother’s papers. It set out instructions to change the Will so that her sister would receive nothing. She asked the court to treat it as an informal codicil.

The court refused, and the reasoning repays attention.

The daughter’s case was that the letter had been sent to the solicitors who held the Will and lost in the post. The sheriff rejected that on the letter’s own terms: it named that firm in a way that would have made no sense had the firm been the addressee. His conclusion was that it had been drafted as instructions to a different firm of solicitors altogether — and that it was never sent at all.

Both sisters agreed their mother had been a meticulous woman in matters of business. That agreement proved fatal. If she had genuinely intended to change her Will, the sheriff reasoned, it was inconceivable that she would have let the matter lie for fourteen years without following it up. The more compelling inference was that she had changed her mind.

There were technical problems too. The original letter had more than one page and only one survived, so the court could not know what the missing page said. A postscript sat below the signature, which raised its own difficulty under the rules on where a document must be signed. But the central point was simpler: a letter of instruction to a solicitor is not a Will. The question in these cases is whether a document was meant as a concluded expression of the maker’s wishes, or only as a paper of instructions. This was the latter.

The 2002 Will took effect, and the sheriff indicated that expenses would go against the daughter who had raised the action.

What are the grounds for contesting a Will in Scotland?

Scots law lets you 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. The Scottish Parliament’s research briefing on inheritance law in Scotland sets out the framework clearly. A challenge to a Will’s validity is raised by way of an action of production and reduction, in either the Sheriff Court or the Court of Session.

Four grounds do most of the work.

Facility and circumvention

Three things must be established. Facility is a weakness of mind that leaves someone unusually open to pressure, brought on by age, infirmity, pain, grief or a condition such as dementia. Circumvention is the improper pressure applied to exploit it. Lesion means harm — though where the first two are established, the very fact that the Will was made in those circumstances is treated as harm enough.

The three are assessed together rather than in isolation. Facility is a spectrum rather than a switch. A robust person can usually resist pressure, or at least choose whether to give in. A facile person may not. The pressure itself need not be dramatic either: it can be direct and overpowering at one extreme, or subtle and insidious at the other.

Undue influence

This concerns the abuse of trust, and it has four elements: a relationship creating dominance or ascendancy, trust arising from that relationship, a material and gratuitous benefit to the prejudice of the person making the Will, and the absence of independent advice. That last element is the one that decides most cases. Independent advice, given before the deed is signed, is how a challenge on this ground is most reliably headed off.

Lack of capacity

The person making the Will must understand what they are doing, what they own and who might reasonably expect to benefit. Capacity is judged at the moment of signing, not in general terms. Notably, capacity was not in dispute in either Scott or Haq.

Improper execution

A Will must satisfy the formalities of the Requirements of Writing (Scotland) Act 1995, including subscription at the end of the last page. Get the signing or witnessing wrong and the document can fail whatever it says.

Boyd raises a fifth question that sits slightly apart from these: whether a document is testamentary at all. A note or letter can be perfectly genuine and still change nothing, because it was never intended to be the final word.

Led, but not driven

There is a formulation that captures the test neatly. A testator may be led but not driven. The Will must be the offspring of the testator’s own volition.

The courts also recognise something important: undue influence is inherently improbable in the case of Wills. Someone hoping to benefit is far more likely to rely on affection, gratitude or ordinary persuasion than on coercion. So the circumstances have to make undue influence more probable than any other explanation. If another possibility is just as likely, the challenge fails.

That is a high bar. It also explains why so much turns on the evidence that existed when the Will was made, rather than on how the family feels about the outcome afterwards.

Does the person who benefits have to leave the room?

This question comes up constantly, and Haq answers it more clearly than most.

Mr Haq’s wife was present at the meetings, though she sat away from the discussion and did not intervene. The court held there is no rule of law or practice requiring a testator to be seen alone. The situations where separate advice is essential — a spouse granting a standard security over the family home for the other’s borrowing, for example — arise from an obvious conflict of interest. There is no equivalent conflict where one spouse simply makes a Will in favour of the other.

That said, the mere presence of a solicitor is not a magic shield. The nature and quality of the advice matters. In an earlier Scottish case the court criticised a solicitor for failing to advise the testator away from the beneficiary — but there the file already recorded concerns about the testator’s health and his dependence on that beneficiary, and the beneficiary had taken part in the call when instructions were given.

The honest answer is that it depends. What matters is that whoever takes the instructions is alive to the question, exercises judgment on it, and records that judgment. None of which can happen when a form is filled in at the kitchen table.

When is a Will most likely to be contested?

Certain circumstances attract challenges far more than others. They are worth recognising, because they are also the circumstances in which careful process matters most:

• Second marriages and blended families, especially 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 point 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 helped arrange it

None of these is a reason to avoid doing what you want with your own estate. Haq makes that explicit: your freedom to dispose of your estate does not bend to what your family expects. They are reasons to do it properly, so that your wishes actually hold.

How to make your own Will hard to challenge

The practical steps are not complicated.

• Use a Scottish solicitor. An online template saves money today and offers nothing at all tomorrow, as Scott demonstrates at length.
• Get medical evidence where it matters. If you are elderly or unwell, a contemporaneous opinion from your GP or consultant puts capacity beyond argument. Around 90,000 people in Scotland live with dementia, so this is far from unusual.
• Explain unusual decisions. If you are leaving someone out, say why, so the reasoning goes on file at the time. It was Mr Haq’s recorded reasons, more than anything else, that carried the day.
• Do it formally. Boyd is the warning here. Notes, letters and back-of-an-envelope changes do not alter a Will. Only a properly executed Will or codicil does.
• Review it regularly. Marriage, divorce, a new grandchild, a house move or a bereavement can all leave a Will saying something you no longer mean. Our article on the importance of estate planning goes into this further.
• Plan for incapacity too. A Power of Attorney covers decisions during your lifetime. It is a separate document, and it gives your attorney no power whatsoever to write or alter your Will.

Plenty of people do none of this. Research by the Money and Pensions Service found that 56% of UK adults have no Will at all, and Will Aid puts the figure at 67% once out-of-date Wills are counted.

Worried about a Will that has already been signed?

If you believe a relative was pressured into changing their Will, act quickly. Evidence disappears, memories fade and estates get distributed. Delay defeats more challenges than any legal argument does.

The material that mattered in these cases included GP and medical records, expert psychiatric opinion, the evidence of nurses, social workers, carers and family friends, the circumstances of the signing, and the solicitor’s file. Assembling that is not a DIY job either, so take advice early — and go in with realistic expectations about how long it can take and what it can cost.

It is worth saying something else plainly. In Haq, two sons recorded video and audio of their dying father in an attempt to establish that he had been pressured. The judge found the recordings painful to watch, and in the end counsel made almost nothing of them. Challenges like these take a toll on families long before any judgment is issued. That is one more reason to get the Will right at the outset.

Why choose Morgans

Morgans has been looking after families across west Fife and Kinross-shire since 1993, when the firm was established by Blair Morgan. We remain a family firm, with offices in Dunfermline and Kinross. Our Private Client team advises on Wills, Powers of Attorney, Guardianships and estates, and we know exactly how much difference careful drafting makes years later.

When you instruct us to prepare a Will, we take the time to understand your family, your assets and your intentions — and we record it properly. Where circumstances are sensitive, such as a second marriage, a blended family, a falling-out or a worrying diagnosis, we know how to put your wishes beyond reasonable argument. Where it helps, we may suggest a liferent trust or a similar structure to protect a surviving spouse and children at the same time.

We also help families on the other side of these situations, through dealing with estates and, where an adult has already lost capacity, Guardianship applications. Our fees are clear and agreed at the outset, and you deal with the same people throughout.

Talk to us about your Will

A Will is one of the few documents you will never see tested yourself. Your family will. An hour in our office now is a small price for the certainty that gives them later.

Get in touch to arrange a confidential chat with our Private Client team.

Dunfermline Office — Morgans, 33 East Port, Dunfermline, Fife, KY12 7JE · 01383 620222 Kinross Office — Morgans, 62 High Street, Kinross, KY13 8AN · 01577 863424

Email enquiries@morganlaw.co.uk or use the contact form on our website. You can also meet the team before you get in touch.

Frequently asked questions

Can a Will be contested in Scotland after someone has died?

Yes. Most challenges happen after death, usually raised by family members who believe the Will does not reflect what the deceased really wanted. The action is called production and reduction, and it is raised in the Sheriff Court or the Court of Session.

What are the main grounds for contesting a Will in Scotland?

There are four: lack of capacity, facility and circumvention, undue influence, and failure to meet the legal formalities for signing and witnessing. Two grounds are frequently argued together on the same facts, as they were in both Scott and Haq.

What does facility and circumvention actually mean?

Facility is a weakness of mind that makes someone easy to pressure. Circumvention is the improper pressure applied to take advantage of it. Lesion is the resulting harm. The three are assessed together, and where the first two are established the court does not require separate proof of loss.

How long does contesting a Will in Scotland take?

Longer than most people expect. Scott v Reeves took three years and three months from the action being raised to judgment, involving expert psychiatric evidence, hundreds of pages of medical records, counsel on both sides and a proof spread over two months. Haq ran for over two years and required ten witnesses at proof.

Who pays the legal costs?

The court decides expenses at the end. In Boyd, the sheriff indicated expenses would go against the daughter who brought the claim and lost. Where executors have to defend a Will, the cost of doing so falls on the estate — which means on the beneficiaries.

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 a Will cannot defeat. Heritable property such as a house is treated differently, so the practical value of those rights varies enormously. In Haq, the estate was tied up largely in heritable property, which meant the surviving spouse would have received relatively little under the earlier Will.

How long do I have to contest a Will in Scotland?

There is no single deadline covering every case, but delay is fatal in practice. Evidence becomes harder to find, witnesses forget, and the estate may already be distributed. Take advice as soon as you have concerns.

Is a homemade or DIY Will valid in Scotland?

It can be, if it meets the requirements of the Requirements of Writing (Scotland) Act 1995. Validity is not usually the problem. The problem is what happens when someone questions it, because a homemade Will comes with no independent evidence of what you understood or intended — which is precisely what a court looks for.

Can a letter or a handwritten note change my Will?

Almost never. In Boyd v Boyd a letter found among the deceased’s papers was held to be instructions rather than a concluded testamentary act, and it changed nothing. If you want to alter your Will, a solicitor-drafted Will or codicil is the only reliable route.

Does a Power of Attorney let my attorney change my Will?

No. A Power of Attorney covers financial and welfare decisions during your lifetime only. A Will must be made personally by you, and only while you have capacity.

Does using a solicitor guarantee my Will cannot be challenged?

No, and anyone who says otherwise is overselling. The Will in Haq was challenged all the way to a full proof 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.

What happens if a Will is reduced by the court?

Reduction means the Will is set aside. Any earlier valid Will then takes effect — in Scott, that was the professionally drawn 2011 Will. If there is no earlier Will, the estate falls into intestacy and is distributed under fixed statutory rules that may suit nobody.

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This article is for general information only and does not constitute legal advice. If you have concerns about a Will, please speak to a solicitor about your own circumstances.

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First Homes Fund Launches

How alterations can cause issues with your sale

If you’ve made alterations to your home, perhaps a loft conversion, an extension, or even removing an internal wall, you may not realise that failing to obtain the correct permissions can cause major headaches when it comes time to sell. In Scotland, significant alterations generally require a Building Warrant before you begin, followed by a Completion Certificate once the work is finished. Without these, you could face delays or even risk the sale falling through.

Why Are Building Warrants and Completion Certificates Important?

These documents show that any work you’ve had done complies with the Scottish Building Regulations. When you sell, your solicitor will ask whether alterations have been carried out and, if so, whether the correct paperwork is in place. The buyer’s solicitor will almost certainly raise this as an issue, and lenders are often unwilling to release mortgage funds until everything is in order.

Common Scenarios Where Problems Arise

• You carried out work years ago and didn’t realise a warrant was needed
• The previous owner made changes without paperwork, and you’re now selling
• You assumed Planning Permission covered everything (it doesn’t!)

What Are Your Options?

If you don’t have a Building Warrant or Completion Certificate, don’t panic. There are usually a few ways forward:

1. Apply for a Completion Certificate

If a Building Warrant was obtained at the time but no completion certificate was issued, you can apply for one retrospectively. Before you do this, you will need to apply for an extension to the time period within which the work should have been carried out, if the Building Warrant was granted more than three years ago.

When you then apply for a Completion Certificate, you are declaring to the council the work is complete and they can accept or reject your assertion. It’s a submission, rather than an application. A local authority surveyor may need to inspect the property.

2. Apply for a Completion Certificate where no Building Warrant was Obtained (also called Late Completion Certificate)

If no warrant was ever obtained, you can still apply retrospectively. You’ll need to provide plans and possibly open up parts of the work so it can be inspected.

3. Request a Letter of Comfort

This is usually only available for work done before 2005. Again, the council will likely inspect the work before issuing a Letter of Comfort. You could also get alteration reports privately from firms like DM Hall.

All of these options take time and incur cost, so if you’re thinking about selling and know (or suspect) there’s no paperwork for alterations, speak to your solicitor as early as possible.

Get Advice Early

At Morgans, we regularly help clients resolve these types of issues so that their sale can proceed smoothly. Get in touch with our conveyancing team today by calling 01383 620222.

Below you will find an easy to follow flow-chart, kindly provided by DM Hall, setting out the options available to you.

The Inheritance Tax Impact on Unused Pensions

Pensions have always played a big part in estate and Inheritance Tax (IHT) planning. For many, leaving behind a pension pot has been a clever way to pass on wealth efficiently. But the landscape is about to change. The 2024 UK Budget announced that, from April 2027, unused pension funds will be brought into the IHT net, a move that could change how we structure and pass on our estates.

What are the current rules?

At the moment, if someone dies with a pension pot they haven’t used, the treatment of that fund depends on their age at death. If they die before 75, the pension can be passed on entirely tax-free to a nominated beneficiary. If they die aged 75 or more, the recipient pays Income Tax on the amount received at their marginal rate.

Crucially, under the current regime, pension funds aren’t included in the deceased’s estate for IHT purposes. Most pensions are held in trust and controlled by scheme trustees or administrators rather than being part of the individual’s assets. This has allowed pension pots to be a valuable tool for reducing the overall IHT burden, especially for those who can live off other sources of income.

What’s changing from April 2027?

From April 2027, unused pension funds will be treated very differently. Under the proposed changes, any remaining pension fund at death will be included in the deceased’s estate for IHT purposes. Therefore, if the total estate, including the pension, exceeds the IHT threshold, tax will be due.

The responsibility for this will fall to pension scheme administrators who will have to report and pay the IHT before distributing the funds. The details are still to be finalised, but the direction of travel is clear.

And it doesn’t stop there. If the pension holder dies aged 75 or older, the beneficiary may still have to pay Income Tax on top of the IHT liability, potentially resulting in a significant overall tax bill.

Estate Planning Implications

These changes could have significant implications for anyone using their pension fund as a tax-efficient means of passing on wealth. While transfers between spouses and civil partners are exempt from IHT, relying solely on this approach could mean a bigger IHT bill when the surviving spouse dies.

So, what’s next? Some may now rethink how they use their pensions. Instead of preserving pension savings, they may choose to draw them down more actively, whether through income drawdown or an annuity, and pass on other assets through gifts and available exemptions during their lifetime.

Why advice is more important than ever

The changes ahead highlight the need to review your estate planning. Every family is unique, and what worked in the past may not be the best option now. We always recommend taking professional financial advice before making any substantial decisions.

At Morgans, our experienced team will work alongside your financial adviser and help you through these changes. It is essential to ensure your arrangements continue to work for you. Whether you’re just starting your estate planning journey or reviewing an existing plan, we’re here to help.

Get in touch with Morgans private client solicitors in Dunfermline or Kinross for tailored advice on Inheritance Tax and estate planning.

We’re Hiring

JOIN OUR TEAM!

We are seeking a Part-time Legal Secretary to join our Private Client team.

The role will include the following:

• Providing direct support to our busy Fee Earners
• Diary Management
• Making and answering calls
• Dealing directly with clients and other firms
• Typing of documents, scanning, copying and filing

The successful candidate will have:

• Excellent organisational skills
• Fast and accurate audio typing skills
• Experience of a Case Management system(s)
• Good communication skills both written and verbal
• Accuracy and attention to detail
• Good numeracy and literacy skills
• A positive attitude with a willingness to be flexible and a team player

Recent relevant experience in a Legal Secretary role is essential.

 

Job Type: Part-Time

Pay: Dependant on experience

Schedule: Monday to Friday

Experience: Legal Secretary 1 year (required)

Please email your CV by the 7th March 2025 to carolinepotter@morganlaw.co.uk

The Importance of Estate Planning

Do you plan to leave as much of your wealth as possible to your loved ones? If you do, you cannot underestimate the importance of estate planning. If you carry out effective estate planning, it may help you mitigate or eliminate your exposure to Inheritance Tax (IHT)

What is involved in Estate Planning?

Estate planning is a process you go through from time to time to work out what you should do with your wealth. It is amazing that people who own a house do not consider themselves to be wealthy. Property values have increased at record rates in recent years. That means people are finding the value of their house is coming close to or exceeding the IHT threshold. This tax free threshold currently stands at £325,000.

Essentially, you add up the value of all your property, assets and investments. From that total, you deduct your liabilities. This sum totals the value of your net estate. Once you know that, you can then begin to plan what to do with it.

You will be able to consider whether you should gift some of your estate away now or decide to make a donation to charity on your death. You will also be able to consider using up your annual gift allowances.

If your house is in your sole name, should you transfer this into the joint names of yourself and your spouse or partner? When you die, what do you want to happen to your house or your share in the house.

One of the key steps in carrying out estate planning will be to create a Will. When you make a Will, you can direct the distribution of your estate.

We cannot understate the importance of estate planning to determine the destination of your wealth. Taking action now can mean potentially making significant tax savings in the future.

What are the benefits of Estate Planning?

One clear benefit of estate planning is the potential to reduce your exposure to Inheritance Tax. It also allows you to organise your affairs in advance. This means that when you die, your affairs will be in order.

In addition to estate planning for tax, it is important to consider your estate from the perspective of family dynamics. Increasingly, there are blended families and your family situation should be considered when estate planning.

You may be able to take advantage of the additional £175,000 allowance if leaving your house to your children or grandchildren(including step-children or step-grandchildren). This would mean your tax free allowance may potentially increase to £500,000.

If you gift property, assets or investments to family, friends or charity now and survive for at least seven years, there should be no IHT implications. Again, this is where it is essential to take legal advice.

Donations to charity are free of IHT and are deducted from the net value of your estate for IHT purposes. If you donate 10% or more of your estate to charity, the IHT rate may reduce from 40% to 36%.

These are just some of the benefits you will gain by carrying out effective estate planning.

How often should you carry out estate planning?

Carrying out estate planning is not a time limited exercise. As your wealth increases over time, you should consider how this impacts on your current plans.

For some people, it might be prudent to review your plans every three years. For others it might be every five years.

Clearly, if there has been a material change in your circumstances, it is important to carry out a review. For instance, coming into a large inheritance would probably constitute a material change in circumstances. Other life-changing events such as marriage, children and divorce also qualify.

These are just some examples of when it important to carry out an estate planning review exercise.

Estate planning and Wills solicitors, Dunfermline and Kinross, Fife

Our experienced solicitors understand the importance of estate planning. In conjunction with tax advisors, we advise clients on the benefits and practicalities of estate planning in conjunction with making or reviewing a Will. We help clients in Dunfermline and Kinross and other locations throughout Fife and across the whole of Scotland.

If you would like to meet with one of our solicitors who specialise in this area, please get in touch with us to make an appointment.

What do you do after you have repaid your mortgage?

This might sound like quite a silly question, but most people are simply unaware that paying off your mortgage doesn’t automatically clear the title to your home. When you take out a mortgage to help you buy your house or if you re-mortgage your existing home, your lender will insist on taking a Standard Security over the title to your property. When you have repaid your mortgage, the Standard Security needs to be legally discharged.

What is a Standard Security?

A Standard Security is a legal document lenders use to secure their interest in your property. It is a document you sign when you take out a mortgage from a lender and it is registered in the Land Register against the title to your house.

The lender can use the powers contained in the Standard Security to repossess and sell the house if you breach the conditions of your mortgage or stop making repayments.

The Standard Security is shown as a charge against your property in the Securities Section (Section C) of your Title Sheet. When you repay your mortgage, you must discharge the Standard Security form the Title Sheet to clear your title.

How do you discharge a Standard Security?

Once you have repaid your mortgage, you should instruct your solicitor to contact your lender to arrange to have the Standard Security discharged.

Your solicitor will prepare a Discharge document and send this to your lender for execution. Your lender may charge a fee for executing the Discharge.

When the Discharge is returned to your solicitor, they will then send it to the Registers of Scotland for registration. The effect of registration of the Discharge is that it removes the Standard Security from the Securities Section of your Title Sheet. This then means that you have a clear title which is not encumbered by a charge. In other words, you own the property outright.

What should you do if you’ve repaid your mortgage?

If you’ve repaid your mortgage, you should contact us. Please provide us with the details of your lender and mortgage account number, and, if you’ve received a letter from them confirming that your mortgage has been repaid, please give us a copy.

It is important to deal with this when you have repaid your mortgage because over time, it might take longer to arrange a Discharge, if, for instance, your lender has merged with another lender and they might be difficult to trace. When that happens, it can cause delay should you wish to sell, re-mortgage your house or enter into an equity release scheme.

Property specialists in Dunfermline and Kinross, Fife

Our solicitors deal with all aspects of residential property on a daily basis in Dunfermline and Kinross, throughout Fife.

If you have repaid your mortgage, they will be able to help with the discharge promptly and without any fuss. They can also look after any other sale or purchase and answer any property related questions you might have. Just get in touch with us and let us know how we can help.

What are the advantages of having a Separation Agreement?

Separating from your spouse or partner can be a stressful and sometimes traumatic experience. Emotions can take over and logical thinking tends to go awry. Within this turmoil, you need to deal with the practicalities of your position. That can be extremely difficult! Sometimes, there is a drive to go to court to demand your perceived rights. However, there are advantages of having a Separation Agreement. A properly negotiated Separation Agreement can lead to a swifter and more amicable resolution.

Before you make any decisions, you should seek professional advice. You need to speak with someone who deals almost exclusively with family law and has expertise in dealing with separation and divorce cases.

Even the simplest divorce can take time, especially when there are children and money involved. Taking the court route can be time consuming and is likely to be more expensive. That’s why a Separation Agreement can lead to a resolution of issues quicker and with less expense.

What is a Separation Agreement?

A Separation Agreement is a document, signed by you and your former spouse or partner which will have contractual effect. It contains important details of when you married, began cohabitation or entered into a civil partnership and that you wish this to now come to an end. The Separation Agreement may also detail whether you have children and set out residence and contact arrangements regarding the children.

Importantly, the Separation Agreement will deal with the financial arrangements following your separation. It may set out what will happen to the family home and if one of the parties is to remain there. If there are monetary payments to be made by one party to the other, they will be set out in the Agreement. Often there will be a differential between the valuations of the spouses’ respective pensions. This differential can be addressed through a “pension sharing agreement” which can be incorporated in the Separation Agreement. This can be a very technical part of the Agreement upon which expert advice from your solicitor is required.

Is the share of property, assets and investments equal in a Separation Agreement?

Scottish Family Law contains provisions dealing with financial matters on divorce. It says that any division should be fair. However, a fair division of property, assets and investments does not always mean an equal share. Circumstances may dictate why the division should not be equal. A Separation Agreement may, for example, record that the net free proceeds of sale of a jointly owned house be split in unequal proportions (which may be different to how the title has been taken) by virtue of the fact that one party to the marriage received an inheritance which they used to clear the mortgage.

When discussing financial arrangements, there are two critical aspects to address. The first is the actual date of separation called the “relevant date” and the second is what constitutes “matrimonial property”. Your solicitor will obtain valuations of matrimonial assets and debts with a view to calculating the net matrimonial assets.

Once these have been established, the next stage is to consider how the net matrimonial assets are divided between the parties. For cohabiting couples, a different law will apply. The discussion can be complex and technical and best dealt with through negotiation.

Clearly, it is best to record your agreement regarding any children. Who they live with and when they can see or stay with the other parent are important things to record in the Separation Agreement.

The advantage of a Separation Agreement is that all these matters can be discussed, negotiated and agreed without the need to step inside a courtroom.

Separation and Divorce Solicitors, Dunfermline, Fife and Kinross

We have solicitors in the firm who specialise in all aspects of family law including separation and divorce, residence and contact and financial provision across Fife and throughout Scotland. Get in touch with us if you wish to discuss the advantages of having a Separation Agreement prepared.