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Defending a ‘mental capacity’ challenge to a Will; 3 things you need to know!

The Alzheimer’s Society currently estimates that 850,000 people are living with dementia in the UK; and that this figure will rise to one million people by 2025 and two million by 2050. When someone with dementia dies, a challenge to the will by a disappointed beneficiary may well be made – especially if the deceased made their will after their diagnosis.

If you are facing a challenge to a will after a loved one has died, it can feel very daunting; how can you prove that the will is valid?

  1. What should I do?

That depends whether you’re an executor – responsible for carrying the deceased’s final wishes – or a beneficiary, who has been left money or property in the will. You may be both! If the validity of the will is being challenged, this needs to be dealt with by the executor. In almost every case, they should instruct a contentious probate solicitor to advise them as the law in this area is very technical.

  1. How easy is it to overturn a will?

Overturning a will is not an easy thing to do. There are a number of arguments that can be put forward, but most cases are fought over the allegation that the person making the will, the ‘testator’, lacked ‘testamentary capacity’ i.e. didn’t have the necessary mental capacity to make a will.

It’s important to say that a diagnosis of dementia does not automatically mean that someone can’t make a valid will.

Where there’s a will, the law assumes that someone had capacity to make it. The person challenging the validity of the will has to come up with evidence that raises a real concern with a judge that the will may not be valid.

If the will challenger can do that, then the burden of proving that the will is, in fact, valid shifts over to the person who’s put forward the will.

The problems facing the challenger initially should not be underestimated; it is a very difficult task to come up with evidence that persuades a judge to be suspicious that a will is not valid. But that doesn’t mean that you should sit back and do nothing if you believe the will is valid;

  1. What sort of evidence do I need to produce to defend a challenge?
  • Any statements/documents made by the testator at the time that the will in question was made.
  • Supportive statements from witnesses.
  • The will file, if a lawyer or will writer prepared it, with file notes/letters which set out the background to the will being prepared.
  • Information about the character, habits and background of the testator; to explain why the will makes the provision that it does.
  • Information about the testator’s behaviour before/after making the will.
  • Information about how the testator was treated by friends/family and
  • Medical evidence (GP and hospital records)

If the challenge is a serious one, both sides will need to obtain expert medical evidence – though recent cases make it clear that an expert report obtained after the death by someone who didn’t see the testator during their lifetime will often carry less weight than contemporaneous evidence (from the time the will was made).

if you require legal help or advice, call us now on 0843 289 7130.



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