For a will to be valid the maker of the will (known by lawyers as the testator – or testatrix if it is a woman) must have the required mental capacity. People often refer to this as “being of sound mind”. Mental illness can give rise to incapacity, but if someone is mentally ill it does not necessarily follow that they will automatically lack mental capacity and be unable to execute a valid will.
It is becoming increasingly common for wills to be contested on grounds of mental incapacity. One very common situation is where the testator is suffering from Alzheimer’s Disease. Alzheimer’s and other age related illnesses are on the increase. As the number of people suffering from the condition grows, so does the number of contested will cases. However, the existence of Alzheimer’s or similar degenerative conditions does not automatically mean that the person lacks mental capacity and that contesting their will is likely to be plain sailing. Each case must be considered on its own specific facts.
In most contested will cases involving mental capacity, some form of medical evidence will be required. When preparing a will for an elderly or unwell person solicitors should take the precaution of obtaining a note from a doctor to confirm that the testator has testamentary capacity. This is sometimes referred to as “the golden rule”. However, the golden rule is not always followed, so if a contested will dispute subsequently arises the parties and their lawyers may have to obtain evidence of the testator’s likely state of mind when the will was executed. This can often be several years after the event, so it is important for specialist solicitors (who are experienced in contested wills and disputed wills) to be involved to ensure that correct and sufficient evidence is obtained.
If it can be proved that the testator lacked mental capacity when the will was made then it is likely that a court will declare it to be invalid, in which case any earlier will becomes operative, or, if there is no earlier will, the intestacy rules apply.
Where you already have good evidence of mental incapacity then we may be abl;e to assist with your case on a No Win, No Fee basis. If investigatory work needs to be carried out on a privately funded basis and you are concerned about not allowing the legal costs to escalate beyond your budget then we will be happy to set a fixed fee limit on the costs being incurred.
If you think you have a case to contest a will on the grounds of mental capacity and wish to discuss funding options, contact one of our specialist solicitors now for a free case assessment by calling 0808 139 1596 or clicking the button below.