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A battle of wills

As a specialist in wills, trusts and estates, I have seen a dramatic increase over the last few years in the number of wills being disputed by disappointed family members. People are much more aware of the legal options open to them. This makes it all the more vital to obtain the right legal advice when deciding to make a new will or when raising concerns about the terms of an existing will after a loved one has sadly passed away.

A claim can be issued by sending a claim form to one of the Chancery Division’s district registries around the country, or to the Royal Courts of Justice in London if the net estate is over £30,000.  Claims where the value of the net estate is below this figure should be considered very carefully given the high potential costs of litigation.

Generally there is no time limit by which claims must be brought in this area, though they should be brought as soon as possible to prevent dissipation of the estate by the person who believes they have inherited it under the will.  The procedure for making a claim is governed by Part 57 of the Civil Procedure Rules, and the principal piece of law applicable to the validity of a will is the Wills Act 1837.

There are various grounds upon which a will can be disputed. One is the mental capacity of the person making the will (legally called the ‘testator’). This is the issue most frequently raised by family members or friends of the deceased who have been disappointed to find they are not beneficiaries of the will.

When the person – typically in later life – drew up the will, did they really understand what they were doing? Were they really ‘of sound mind’, or had they lost the ability to make such decisions – ‘capacity’ as lawyers call it – perhaps through the onset of dementia, thereby rendering the will invalid?

Dementia diagnoses are not always clear cut, black-and-white affairs. Recent statistics have shown that half of all dementia sufferers do not have a formal diagnosis. More of us are living longer but with increasingly complex health conditions.

The tests used to assess whether a person really does have the capacity to draw up a will are very specific. Careful legal assessment and, where appropriate, medical advice is required. But legal protection for the testator is equally vital, allowing them to fulfil their wishes if they do and still have the capacity to make a valid will. People who are ill for whatever reason may have a fluctuating mental state, alternating between good days and bad days. On a good day they may pass the test for capacity and on a bad day they would fail it. The capacity test is much more than a simple memory test. It includes an assessment of the person’s understanding of the will: the extent of the assets to be distributed and the moral claims of individuals he/she ought to consider. An additional factor to be considered is the possible impact of outside influences on the decision-making process and, in particular, any undue influences put upon vulnerable testators.

If, after an investigation, it is established that these issues have not been properly addressed and documented, legitimate questions could be raised regarding the validity of the will in question. So do seek informed legal advice as soon as you can.

Duncan was a solicitor who worked across the Stowe Family Law’s Harrogate office, Wetherby and Leeds offices. He advised clients on wills, estate administration, probate, tax, trusts and lasting powers of attorney. He has written several articles in legal publications and is a contributing author to a forthcoming legal textbook.

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