Following the death of a loved one, additional upset can be caused by a challenge to the validity of the will by a disappointed beneficiary on the basis that the deceased lacked the required testamentary capacity to make the will when it was made.
But how easy is it to challenge a will on this basis? In short, it’s not that easy.
Such claims are becoming more prevalent. Although we are tending to all live longer, the downside is that the chances of us suffering from a form of dementia such as Alzheimer’s is increasing. Indeed, the Alzheimer’s Research UK projected that worldwide dementia cases were likely to triple by 2050 in a report earlier this year. Consequently, there are more opportunities for there to be doubt as to the capacity of a person making their will particularly later in life.
The law wants to create certainty and will not set aside a will unless there are persuasive reasons to do so. In particular, its starting point is that the person had capacity to make the will. The Probate Registry will also presume that the deceased had capacity at the time the will was made.
The law also says that the test of capacity to be applied is that the testator must
One of the obvious difficulties is that the allegations of lack of capacity will be made post death so the testator cannot be medically assessed at the point at which the will is challenged. So how can the validity of the will be questioned?
The challenger ordinarily will need to call witnesses who met with the testator prior to their death and can give evidence as to the testator’s capacity. There may also be documents written or produced at the time which will give an indication of the testator’s state of mind.
However, there are two other much more significant avenues of enquiry.
Primarily, if the will was made with the assistance of a lawyer or will writer, their files should contain invaluable information as to the background to the will being made and what the testator intended at that time. In a recent Court of Appeal decision, the Court held that there needs to be strong evidence to find that a testator lacked testamentary capacity when an experienced solicitor was engaged and retained a record of why they believed the testator had capacity. Secondly, obtaining medical notes from the deceased’s general practitioner and possibly hospital records may well indicate whether there were any capacity concerns.
In some cases, the Court may order that expert medical evidence should be obtained to review retrospectively the medical condition of the testator. However, it is recognised by the law that such reports by individuals who may never have met the testator are usually of less significance than contemporaneous evidence from witnesses around at the time the will was actually made.
It is important to note that a diagnosis of a form of dementia does not necessarily mean that the will is invalid particularly in the early stages of the disease. In particular, the testator may still pass the legal capacity test. There was also a recent case in which the Court made it clear that the potential capacity of a testator to understand their actions was not to be equated with memory.
Finally, it is important to understand that if the will is declared by the Court to be invalid on the basis of a lack of capacity, it is void as if it never existed. The estate will then ordinarily pass to the beneficiaries named in the penultimate will that was made by the deceased, or if none, in accordance with the order set out within the intestacy rules. Consequently, when considering whether to challenge a will on this basis, it is important to think through the consequences for all parties concerned.
To find out more, please contact Jonathan Mortimer, a partner within the Dispute Resolution Unit via email at firstname.lastname@example.org
Published on 17 November 2022