How to Challenge the Validity of a Will on Mental Capacity Grounds

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 24th October 2024

A person’s will often highlights how they want their property distributed and who gets what when they finally pass on. However, there are occasions when beneficiaries may raise concerns over the validity of the will due to the testator's mental state at the time of writing. When this confusion sets in, family members and loved ones may find themselves in conflict, questioning the fairness of the will and seeking ways to challenge its validity.

In this guide, we'll explain how beneficiaries can challenge the validity of the will on mental health grounds. We'll cover:

  • The legal framework for challenging the validity of a will

  • The steps involved in a will dispute

  • The evidence you would need to present to successfully challenge the will

Testamentary Capacity: What It Means

Testamentary capacity simply refers to the legal requirement that a testator must meet to make a valid will. The 1870 English case of Banks v. Goodfellow is the standard for determining if a testator is mentally sound or capable of making a will, be it local or international will.

According to the Banks v. Goodfellow [1869-70] case, a testator must meet the following criteria to be considered to have testamentary capacity:

  1. They must be aware/comprehend that they are making a will, understand the purpose of doing so, and understand the effect of the will.

  2. They must be fully aware of the extent and nature of the property or estate they can give to gift beneficiaries.

  3. The testator must be aware of people who might legitimately claim their estate, such as close family members, loved ones, and others.

  4. The testator must also be free of any mental disorders that could potentially interfere with their ability to make sensible decisions when allocating their assets.

Grounds for Contesting a Will on Mental Capacity UK

Contesting a will based on the testator's mental capacity is a serious legal matter in the UK. To do so successfully, you need solid evidence proving the testator lacked the mental capacity to make their decisions.

Evidence of Lack of Capacity

If you are a beneficiary of a will and you intend to contest its validity because you believe the creator of the will is not of sound mind when creating it, then you will need to get solid evidence, such as:

  1. The testator's medical history: This type of record or examination will provide a full account of the testator's mental health diagnoses (such as dementia or Alzheimer's) and their various treatments before their death.

  2. Witness statement: This includes testimonies from people closer to the testator who can attest to their mental health and behaviour before forming the will. Your witness can't just be anyone. Typically, the best witnesses are the testator’s family members, friends, caregivers, or someone the deceased appointed to give their lasting power of attorney (LPA).

  3. Evidence that shows inconsistency in their decision-making: To strengthen your case, you should present evidence, preferably video evidence, demonstrating the testators' irregular or inconsistent judgments about their estate or relationships with beneficiaries around the time the will was executed. 

  4. Expert testimony regarding their mental incapacity: Expert testimony indicating that the testator had a diminished ability to understand the nature and consequences of making a will is another admissible piece of evidence.

The Role of Medical Evidence

Originally, individuals' medical records were protected documents that could not be accessed without consent from the owner due to privacy laws. However, in challenging the validity of a will, an interested individual may be granted access under specific legal provisions, such as the Access to Health Records Act 1990. The testator's medical records can play a huge role in determining whether the challenge will succeed because:

  • Medical records contain vital information about the testator's general health status, including their mental state, before and during the creation of the will.

  • The records will also outline the various treatments the testator has received, ensuring that the court fully understands the testator's medical condition and how it may have impaired their capacity to make a valid will.

Additionally, when requesting a medical record, it is crucial to note the date of the deceased's death. If the death occurred before 1 August 2022, you should apply to Primary Care Support England to release their records. In contrast, if the deceased passed away after this date, their last known registered GP (general practitioner) will hold the records. However, if you don't know their last GP, contact Primary Care Support England. They will help you find their last doctor so that you will be able to access the records you want

How to Challenge a Will

Challenging a will is far from a simple process, despite what you may have been told. It often involves navigating complex legal challenges and overcoming various obstacles. Below we'll provide a brief overview of the steps you need to take to contest a will successfully.

1. Gather Evidence

It's no surprise that lack of capacity is the number one reason for contesting a will in the UK. This highly complex issue demands the most compelling evidence you can gather. There are various types of evidence you can present - it is left for you, and with the help of a solicitor, to determine which is best suited to your case. However, the most common types of evidence that are admissible in court include:

  1. The deceased medical documentation or record showing cognitive decline or a diagnosis of a condition affecting decision-making.

  2. Witness statements from those who interacted with the testator before they passed on.

  3. Records or statements from the solicitor who prepared the will.

2. File a Caveat

After gathering all relevant evidence, if you believe you have valid grounds to contest the will, the next step is to file a caveat with the Probate Registry. The caveat is initially valid for 6 months but can be extended for an additional 6 months. Filing a caveat prevents the grant of probate from being issued, which temporarily halts the distribution of the estate. This ensures that no assets will be distributed until the will's validity is determined.

You can apply for a caveat online or through post by filing Form PA8A and sending it to HMCTS Probate. It costs £3 to apply, and you need to submit the following details:

  1. The full name of the deceased

  2. Exact date of death (You can get this from the death certificate)

  3. The last address of the deceased

  4. Your home address and your email address

3. Take the Case to Court

After you have successfully stopped the distribution of the will and you can’t resolve the issue internally through mediation, then the next step is to take the case to court. You will be asked to present all the evidence you have gathered in court. Again, the evidence you want to present must be strong enough to support your claim that the testator lacked capacity while creating the will. 

Once the evidence is presented, the burden shifts to those defending the will, who must prove the testator had the required capacity. After both parties have presented their case, the burden shifts to the court to make a legally binding decision. The legal term for this phase is The Burden of Proof.

💡Editor's insight: In our experience, it is important to note that there is no timeframe for the completion of the court hearings simply because the complexity of each case, the availability of evidence, and legal procedures can vary significantly. Overall, you must seek legal advice from experienced professionals early on to help avoid unnecessary delays and improve your chances of success.

Best Practices and Tips for Contesting a Will

To improve your chance of success, our best advice is to:

As contesting a will on mental capacity grounds can be challenging, it is necessary to engage with a counsel knowledgeable in probate law early on. Probate solicitors are professionally trained, and they can help you:

  1. Assess the strength of your case

  2. Gather relevant evidence, such as the deceased medical records and

  3. Represent you in court if need be.

Act Quickly

The popular saying "a stitch in time saves nine" holds true when it comes to mental capacity disputes as well. In the UK, claims typically need to be made within six months of the grant of probate. Acting quickly allows you ample time to gather the necessary evidence and, if needed, file a caveat to prevent the will from being executed too soon.

Banks v Goodfellow case of 1870 remains the leading authority on testamentary capacity. The test established by this case outlines the criteria for determining whether a testator possessed the mental capacity to make a valid will. The criteria outlined by this case include:

  1. The testator should understand the nature of the will as well as its effect.

  2. They must be free of mental delusions that could change their dispositions toward the will beneficiaries.

  3. They must be aware of the people they are about to will their estates to.

  4. They must know the extent of their estate.

In the UK, courts often rely on medical and witness evidence to make judgments in probate disputes.

FAQs

What is testamentary capacity, and how is it determined?

Testamentary capacity refers to a person's legal ability to make a valid will. The testator’s mental capacity is determined if they pass the criteria outlined in the Banks v. Goodfellow (1870) case. The case suggests that a testator will be considered to have mental capacity if they understand the nature of making a will, the extent of their estate, and those who may have claims on it.

Can I challenge a will based on dementia or Alzheimer’s?

The answer to this is both yes and no. If there is strong evidence that dementia and Alzheimer's have affected the testator’s ability to make decisions about their will, then yes, you can challenge them. However, if there is no solid evidence that they affected the testator’s decision-making, then challenging a will won’t be possible.

What evidence is needed to contest a will on capacity grounds?

Typically, you need the deceased medical records and testimonies from family members, caregivers, solicitors who helped the person create the will, friends, and everyone close to the entity before they pass on.

What happens if a will is declared invalid due to lack of capacity?

If a will is found invalid, the estate will be distributed following the previous valid will or under the rules of intestacy if no valid will exists.

Conclusion

Challenging the validity of a will on mental capacity grounds is not an easy process simply because of the complexity involved and the evidence required. However, if you carefully follow all the steps outlined in this guide, your chances of successfully contesting a will will increase significantly.

That said, if you need personalised advice and help to contest a will or you simply need more information, don’t hesitate to contact a member of our expert probate and wills solicitor team.

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