Contesting a Will : Did the Deceased have the Capacity to make a will?

Have you recently discovered that a will was altered close to their death? was the person on very strong medication due to a terminal illness? are you concerned that the Deceased did not have the mental capacity to make a will?

If you are concerned about a will being altered close to someone’s death and have concerns about their mental capacity, we can help. We are specialist contested probate solicitors and are one of the few firms to specialise in this complex area of law. We have acted in numerous cases concerning :-

• Wills being altered close to death
• Issues surrounding the Deceased’s capacity to make a will
• Failure by Solicitors to follow what is known as the Golden Rule eg. Was a Doctor asked to provide an opinion as to the Deceased’s mental capacity
• Issues Surrounding Undue Influence Being Applied to the Deceased

Making a will : Did the Deceased have the capacity?

To make a will the person MUST have understood, that they were actually making a will. The legal test was established in a very old case called Banks-v- Goodfellow, this established that the person making the will must :-

1. understand the nature of making the actual will
2. the effect of making the will
3. the nature and effect of the property they owned eg. understand what assets they own
4. the claims on his/her estate of those who are benefiting and excluding

In order to assess a case, we will typically speak with members of the family and persons who knew the deceased to build up a picture of the deceased, thereafter we will obtain a copy of the medical records to review in detail whether there are any issues that question the deceased’s capacity eg. low scoring on a memory testing scale or diagnose of alzheimers, or dementia.

The Golden Rule : ensuring the Deceased had the mental capacity to make a will

Given the problems that often arise when wills are altered close to death, the Courts have established something known as the Golden Rule. This rule provides that if a will is being altered close to someone’s death and there are issues with the testators capacity, then a Doctors medical opinion should be sought before a will is executed, so as to ensure the person making the will had the capacity to do so.

Sadly, we see many wills being altered close to death despite issues arising over the Deceased’s mental capacity and no independent medical opinion is obtained.

Unhappy with a will being altered? Want to contest a will? Call our specialist team NOW on 0845 568 4000.

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