"A closer look at mental capacity as a trigger to contest a will"
It is always difficult when a loved one passes, and times are made even more challenging when their Will does not say what you expected it to.
There are several ways in which a Will can potentially be challenged. In this Article, we consider situations where the deceased may have lacked mental capacity to make the Will in the first place.
In order to make a valid Will, a person must satisfy the following criteria:-
1. They must understand that they are making a Will;
2. They must have a rough understanding of the assets that they own and their value;
3. They must be aware of the people to whom they ought to consider leaving a gift, such as family members; and
4. They must not be suffering from any medical condition, either temporary or permanent, which affects their decision-making process.
It is often difficult to prove that the deceased did not satisfy the criteria. However, it is often worth carrying out investigations to check whether there is any evidence of a lack of mental capacity. Investigations can include asking questions of the solicitor who prepared the will, obtaining medical records for the deceased and obtaining statements from people close to the deceased at the time that the will was made.
If these investigations provide sufficient evidence of a lack of mental capacity, then it may be possible to apply to Court for the will to be declared invalid. If the Court makes such a declaration, then the deceased’s estate will be distributed in accordance with their previous will or, if no such will exists, in accordance with the rules on intestacy.
If you wish to contest a will on the grounds of mental capacity, or for any other reason, it is important to act promptly. For more information, please contact Graeme Stenson