Contesting a will on grounds of mental capacity
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 testamentary capacity. People often refer to this as “being of sound mind”. Mental disability can give rise to mental incapacity, but if someone is mentally ill it does not necessarily follow that they will automatically lack testamentary 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 presence 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 facts.
In most contested will cases involving mental incapacity issues, 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 or GP 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 when a contested will dispute subsequently arises the parties and their lawyers 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 (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 would be operative, or, if there is no earlier will, the intestacy rules.
If you think you have grounds for contesting a will because of mental capacity, contact one of our specialist solicitors now for a free case assessment by clicking the button below.