‘If following the death of a vulnerable testator you feel someone has bullied them into drafting or altering a will in their favour, there are legal steps you can take to contest the will,’ says Claire Simon, Partner in the civil litigation team with QualitySolicitors Parkinson Wright. ‘To do this successfully you will need to show that the testator lacked mental capacity as defined by Section 3 (1) of the Mental Capacity Act.’
Proving mental incapacity
This would involve proving that, when the will was signed, the testator was unable to understand the information relevant to the decision; retain the information to make an informed decision; weigh up the information to make a decision; and adequately communicate their decision.
Following the legal test laid out in Banks v Goodfellow (1870), they must also be capable of understanding the nature and effect of their actions, including the act of making a will, the size of their estate, the consequences of distributing their assets, and the possible claims of those who might reasonably expect to benefit from the will.
Challenging a will on the grounds that the testator lacked mental capacity is a complicated and gruelling business, so it is crucial to engage the services of an experienced solicitor to help you gather the evidence needed to support your claim. The burden of proving mental capacity falls on you and the court will require compelling evidence before they will declare a will invalid and order that the estate be distributed according to a previous valid will or the rules of intestacy.
Evidence required to contest a will on the grounds of mental incapacity
Evidence typically required to challenge the terms of a will on the basis of mental incapacity includes:
- Medical records – if the testator was diagnosed with dementia, for example, their medical records will often outline the progression of the disease, the symptoms suffered, and possibly even include a formal assessment of their mental capacity. Medical professionals’ notes can also be useful, particularly if they contain an opinion about the testator’s ability to make decisions.
- Financial records – which may reveal irregular transactions or misuse of funds.
- Correspondence – letters, emails, or text messages that might reveal attempts to influence or isolate the testator.
- Testamentary evidence – statements from the testator themselves, made before they passed away, that they were obliged to make the will or felt coerced.
- Solicitor or will-writer’s records – this may include their attendance notes from meeting the client, observations about the testator’s mental state, and any notes made during the will-drafting process which might suggest the testator showed signs of mental impairment or confusion.
- Witness statements – these should be taken from anyone, including family members, friends, or carers, who associated with the testator during the will-making process and may be able to provide first-hand accounts of any signs of confusion or an inability to comprehend the nature of a will. They might also be able to pinpoint inconsistencies or changes in the testator’s wishes that could imply they were not mentally capable to make a will.
- Expert medical opinion – an expert medical professional can help establish whether the testator lacked the mental capacity to make a valid will. They would review the medical history, assessments of a testator’s cognitive abilities, and all relevant documents to assess whether the person was able to understand and make decisions about their will when it was signed.
- Changes made to an existing will – such as removing or adding beneficiaries in an unusual or unexpected manner.
How a solicitor can help
The first and most important step to take when challenging a will is to engage an experienced litigation solicitor from the outset. They will obtain a copy of the testator’s will and any ancillary notes, and help you amass the evidence you need to mount your challenge.
They will try to get the dispute resolved out of court through mediation or negotiation but, if alternative dispute resolution measures fail, they will take the necessary steps to ensure you have the strongest possible case to put before the court.
They will lodge a caveat with the Probate Registry which allows the probate process to be put on hold and prevents the grant of probate being made, allowing you time to gather the evidence you require. They will take care of all the necessary paperwork, ensure court deadlines are adhered to, and offer advice and representation when your case goes to court.
If you are concerned about a suspicious will, please contact Claire Simon or a member of the civil litigation team on 01905 721600 or via email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.