If you’re dealing with a will following the death of a loved one, you might be wondering if its terms are final - especially if someone close has been left out, or if the will doesn’t reflect a change in circumstances.
Wills carry significant legal weight in Scotland. But they’re not always the last word.
This guide explains the circumstances where a will can be changed or varied - and the steps you can take to do that.
Is the will valid?
The first step when dealing with a will is confirming whether it is legally valid.
In Scotland, a will can be valid if it —
Clearly sets out the person’s wishes for what is to happen following their death, what’s called ‘testamentary intention’ must be clear
Has been signed by them.
However, a will that has been prepared and witnessed will also be ‘self-proving’ - meaning it meets all the formal requirements under the Requirements of Writing (Scotland) Act 1995, if it —
Is signed on every page (if more than one)
Is signed at the end (called ‘subscribed’)
Is witnessed on the final page, with the witness’s full name and address included
States when and where it was signed.
If the will is not self-proving, the court may need to be satisfied that it was intended to be a testamentary document - which can lead to delays or disputes.
What if the will doesn’t seem right?
Sometimes, family members raise concerns that a valid and self-proving will isn’t a true reflection of what they believe the person wanted. These concerns often fall into legal categories including —
Lack of capacity
There may be evidence that the person who made the will was no longer mentally capable of understanding what they were doing - for example, due to illness or cognitive decline.
Undue influence
This refers to situations where someone may have pressured, manipulated or coerced the person into changing their will.
The courts set a high bar for these kinds of challenges. You’ll need strong, clear evidence to overturn a will, and most signed, clearly expressed wills will be upheld unless there’s a very good reason not to.
Can family members claim a share even if they’re not in the will?
Yes, in some cases.
Even if a will is valid, certain rights exist in Scotland that sit alongside it.
Spouses, civil partners
Getting married or entering a civil partnership doesn’t cancel an existing will - but it does give the surviving spouse or partner a right to claim legal rights (a type of ‘automatic inheritance’) based on the value of the moveable estate (money, investments, possessions).
This applies even if the will doesn’t name them or leaves them something different - although the person entitled to legal rights can choose to waive that claim if they prefer to follow the will.
Divorce or the end of a civil partnership removes those legal rights and prevents the former partner from inheriting anything left under the will or acting as executor if appointed by the will.
Children
Like spouses and civil partners, children also have an entitlement to claim legal rights.
There’s also a specific situation to consider: if a child is born after the will was made and isn’t provided for in it, they may have the right to have the will set aside entirely. This is based on a legal rule known as conditio si testator sine liberis decesserit - the presumption that the person who made the will would have updated it to include that child once they had been born.
If successful, the will could be set aside, and the estate would be dealt with as though no will existed (this is called intestacy, you can read more about it in our past blog)
In practice, many families in that situation will reach an agreement outside of court.
Can a will be changed after death - even if it’s valid?
Yes, through something called ‘a deed of variation’, also known as a deed of family arrangement.
This legal document allows the beneficiaries of a will to agree to change how the estate is divided, often for practical or tax planning reasons.
Some common reasons families use a deed of variation are —
To add a person, or charity that wasn’t included
The family wants to pass assets to the next generation (e.g. children redirecting their share to grandchildren)
It would be more tax efficient to distribute the estate differently (e.g. where farming or business assets are involved)
To be valid —
All affected beneficiaries must agree
It must be signed within two years of the person’s death
It must meet specific legal formalities
With changes expected to business and agricultural reliefs now confirmed, deeds of variation are likely to remain an important option for families planning.
Final thoughts - is a will ever truly final?
A valid will carries significant weight - but it isn’t always the end of the story.
Scots Law provides important protections for spouses, civil partners and children, even if they’re not mentioned in the will. In some cases, wills can be overturned due to capacity or coercion concerns. And in others, families may choose to agree changes together through a deed of variation.
If you’re dealing with a will —
Double-check if the will is valid and self-proving
Consider whether legal rights apply to you or others
Don’t assume you can’t vary the terms, advice can help here
Act quickly, especially if you’re thinking about a deed of variation
Need advice on wills, legal rights or family arrangements? We’re here to help you understand your options - and act quickly where needed.
James Florance
Associate
Posted: December 4th, 2025
Filed in: Private client