Just the fact that a person making a will was moved by “frivolous, indicate or even bad intentions” will not make a will invalid if the have the mental capacity. To succeed with contesting a will, it needs to be shown at the time the will was executed, the testator did not have the capability to make a will.
If a testator has a broad concept of his possessions but is not able to give specifics, it will not be possible to successfully contest a will on the basis of mental capability. If an executor named in such a will is insistent that the will is valid, it will be for the administrator to show that the testator had the essential testamentary capability.
You can also contact the solicitors who prepared the will and request details regarding the will’s preparation work and locate the witnesses to the will to discover the conditions surrounding the execution.
How to contest a will?
Among the premises for challenging the validity of a will is that the individual who made the will (“the testator”) did not have the relevant mental capacity to comprehend his actions.
. The law associating with whether an individual has enough mental capacity to comprehend the material of his will was developed in the case of Banks v Goodfellow [1869-70] which specified that the testator should:
– comprehend the degree of the property of which he/she is disposing
– be able to understand and value the claims to which he/she ought to provide effect
– comprehend the nature of the act and its results
– and should not be effected by any “disorder of the mind” that shall “toxin his loves, pervert his sense of right, or avoid the workout of his natural professors which no insane delusion will affect his will in throwing away this home and produce a disposal of it which, if the mind had actually been sound, would not be made”.
The factors described in Banks v Goodfellow are considered in more information below.
Comprehend the nature of the act and its results
The law does not call for a perfectly balanced mind. Just since an individual making a will was moved by “pointless, indicate or perhaps bad intentions” will not make a will void. An individual is entitled to disinherit his children for factors of spite without such desires being challenged on the grounds of mental capacity. This is clearly subject to the individual having “sound mind, memory and understanding” at the time the will was made. The concern as to whether an individual has the relevant mental capacity is a valid concern which is commonly figured out by medical evidence. The evidence of close friends and household is also appropriate and an individual can be found to be doing not have mental capacity based upon their proof alone.
When contesting a will, problems arise with issues worrying mental capacity where a condition influences the mind over an amount of time, e.g. Alzheimer’s. In such patients it is frequently the case that on some days they comprehend matters and on others their memory is doing not have. To succeed with contesting a will, it needs to be revealed at the time the will was executed, the testator did not have the capability making a will.
Understand the level of the home
A testator requirement only have the capability to comprehend the level of his property. It is not the case that a testator needs to have an in-depth knowledge of all his assets/monies. If a testator has a broad idea of his possessions however is not able to offer specifics, it will not be possible to effectively contest a will on the basis of mental ability. Cases where the testator did not understand the level of the property are extremely uncommon. Where this certain heading is raised, it is often in support of other matters worrying a testator’s capability.
Comprehend and value the claims to which he/she ought to give impact
If a testator did not consider leaving part of their estate to a close family member or did rule out a claim versus the estate, this might be a sign that the individual did not have the required mental capacity to comprehend their actions and it might be possible to contest a will. Such claims might consist of those pursuant to the Inheritance (Provision for Family and Dependents) Act 1975, details which are included in Part 8 of this series of posts.
Contesting a will: anticipation of capacity
Mental capacity will be presumed if the testator left a will which seems reasonable and contains no abnormalities.
If, nevertheless, having actually seen the testator’s medical records and talked with close family members, it is developed that the testator has a history of mental illness/confusion or memory loss, it will be for those persons looking for to depend on the file to establish capability (see Vaughan v Vaughan . If an administrator named in such a will is insistent that the will is legitimate, it will be for the executor to show that the testator had the required testamentary capability.
If you have premises to suspect that the testator did not have the needed testamentary capability to comprehend the material of their will, it is essential to take action and legal advice as quickly as possible. You might want to go into a caveat with the Probate Registry to prevent a Grant of Probate being secured and the possessions of the estate dispersed. You can also contact the solicitors who prepared the will and demand details regarding the will’s preparation and locate the witnesses to the will to discover the conditions surrounding the execution. Attempt and obtain the testator’s medical records to develop whether the person was dealing with any health problems. Even if the medical records are not helpful of a claim concerning mental capacity, if there are witnesses validating the individual lacked such capability, it might be possible to contest a will.
Where a will is effectively contested and the court verifies the will is void, if there is not an earlier valid will, then the testator’s estate will be distributed according to the intestacy rules.