How can I challenge a Will for lack of mental capacity?

10 May 2022 | Disputes & Claims | Author: Jonathan Peck

One of the ways that a person can try to argue that a Will is not (or should not be) valid is to challenge whether the deceased had mental capacity to make the Will.

It is important that anybody making a Will has capacity in the legal sense to make all of the decisions necessary. If this is in doubt then it could be the basis to have a Will set aside.

Mental capacity is assessed broadly in two ways, either through application of the provisions of the Mental Health Act or by applying a common law test of capacity – which are subtly different.

Solicitors will use their own judgment and experience to assess whether somebody making a Will has capacity, but will also apply what is called the “Golden Rule” – which calls for there to be a medical assessment of capacity in circumstances where there is doubt.

A solicitor who assisted in the preparation of a Will may be asked to provide a witness statement confirming their recollection of the testator and their capacity.

Challenges to a testator’s capacity can come many years after the Will was made and therefore the Courts consider all available evidence in deciding whether or not to retrospectively assess the testator as having or lacking capacity. Documents like medical records, text messages, emails and witness evidence can all be relevant.

Under the Mental Health Act a person is presumed to have capacity unless it is proven to the contrary by the person challenging the Will. This can be difficult in historic cases where there is little or no contemporaneous evidence.

Challenges to a Will on capacity grounds can be difficult for all concerned, especially where a dispute is between family members. It’s therefore vital for executors or beneficiaries to get specialist advice as soon as possible if it appears a dispute is likely. At Fishers we can help.