How to Contest a Will
As a firm advising specialising in will disputes, we sadly see many cases of wills being altered or amended very close to the Testators death, when the person making the will is very ill, or there are clearly issues with the persons making the wills capacity.
If this is the case how the can the will be challenged and what is the law ?
The term testamentary capacity is used to describe the requisite capacity a person making a will Must have. the relevant threefold test, was laid down in a case called Banks -v-Goodfellow this cases back hundreds of years and still remains good law, as to the legal test when considering the capacity of someone making a will. This case provides that when making a will, the following test should be applied :-
- Did the Deceased understand the nature of the property of which he or she was disposing ?
- Did the Deceased understand the nature of the act of making the will and its effects ?
- Did the Deceased understand the extent of the property of which he was disposing ?
When considering those questions, the Courts will often ask whether there are circumstances which arouse `suspicion ` to warrant the will to be investigated. For example, was the Deceased very ill, was his or will very different from previous wills, has a close family member been left out of the will ? has the capacity of the deceased been tested by a GP for example in memory testing ? if any of these factors arise then it is likely the will can be contested.