Litigation: The Court’s Power to Declare a Signed Document Void

There are many documents that once executed (signed) can only be declared void (legally known as "declarator and reduction") by an order from the Court of Session in Edinburgh - the highest civil court in Scotland. Such documents include Wills, Trust Deeds or Confirmation of Executors, to name but a few.

To successfully pursue a claim for declarator and reduction, a basis (or bases) must be established for declaring the document void before it can be reduced.

The typical bases include:

(1)   The signature on the document is a forgery;

(2)   The individual who signed the document (the "testator") was not of sound mind (lacked capacity) at the time of signing; or

(3)   The testator was in a state of facility (vulnerable) and was the subject of undue force or influence which has circumvented (avoided) their true intentions.

In order to successfully prove your case to obtain declarator and reduction, in terms of (1), when the testator has died (which is generally the first point at which such issues come to light) it is usually necessary to instruct a handwriting expert to analyse the known signature/handwriting of the testator and compare those to the signature in question. It is, therefore, very important to have good quality original versions of the testator's handwriting in order to instruct an appropriate expert for a report. The types of documents which require a court order to be reduced also require to be witnessed and, therefore, it is important to trace those individuals and understand their evidence about the circumstances in which they came to witness the signature under challenge and add their own signatures.

In terms of (2), it would be necessary to recover relevant hospital and GP records, as well as factual reports from those involved with the testator, in order to fully understand their mental/physical capacity at the time they signed the document. If the testator had been diagnosed with a particular condition, it may be necessary to instruct an expert medical report to address precisely why this condition or the treatment could impact upon the testator's capacity as well as when such an impact occurred. As mentioned in (1) above, the witnesses to the document signed should also be traced to understand what they observed in relation to the testator's capacity when they were present at the signing.

Basis (3) is probably the hardest to prove as it really comes down to the factual background and, in particular, the known susceptibility (age, physical weakness, mental illness) of the testator to be influenced by others or any witnessed force being applied to the testator. Establishing this ground is very reliant upon strong, independent and detailed factual witness testimony, so a thorough investigation is required before an action can be raised on this basis.

At Drummond Miller we are regularly instructed by individuals and other Solicitors to assist with pursuing or defending actions for declarator and reduction in the Court of Session. If you require advice in relation to such an action, please contact a member of our Litigation Team.