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Contesting An Invalid Will

Challenging A Will Due To Lack Of Testamentary Capacity

You may be able to contest someone’s Will if they weren’t of sound mind or memory when they made or changed it.

Someone must have testamentary capacity in order to make or change a Will. This means that they must have the mental ability to understand what they’re doing and the impact that it will have on their estate and anyone who might inherit.

A Will is invalid if someone makes or changes it without testamentary capacity. Their estate will be administered according to their most recent valid Will instead. If they had no previous valid Will, their estate will be divided according to the rules of intestacy, which set out who can inherit from an estate when there’s no Will.

You may believe that a Will is invalid due to lack of testamentary capacity if:

  • The Will doesn’t provide for you or others whom you would have expected to benefit
  • The Will contradicts earlier promises or agreements
  • You’re concerned that the Will doesn’t reflect the deceased’s true wishes
  • You know the deceased was suffering from a medical condition when they made the Will and doubt whether they had testamentary capacity at that time.

Since many people only make or change their Will later in life, their capacity can be affected by conditions like memory loss, Alzheimer’s disease and dementia. However, people can lose capacity at any age due to mental illness or brain injury.

If you think a Will was made or altered without testamentary capacity, our lawyers could help you contest it.

As one of the largest Will, Trust & Estate Disputes teams in the country, we have a wealth of experience with these claims and understand how sensitive they can be. We’ll work with you to resolve the dispute as quickly and as amicably as possible.

Call us today on 0345 604 4895 – or fill out our online form and we’ll call you back.

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Challenging A Will Due To Lack Of Testamentary Capacity - More Information
    • Who Can Contest A Will?
    • You may be able to contest a Will if you feel that you have been unfairly left out or that that will doesn’t provide for you enough. This includes:

      • If you are named in the Will but received less than you expected
      • If you were financially dependent on the deceased and have not received enough in the Will
      • If you have been left out of the Will entirely
      • If the deceased promised to give you something before they died, but didn’t
      • If you are worried that the Will doesn’t accurately reflect the deceased’s wishes.

      Whatever your concerns about your loved one’s Will, our specialist team can advise how best to put things right. Call us today on 0345 604 4895 to find out more.

    • How Long Will It Take?
    • Most claims take less than a year and don’t have to go to court. However, every case is different and time spans depend on the type of dispute and your individual situation.

      Some disputes can be resolved quickly and amicably in a matter of months, but others might take years to conclude and involve going to court several times.

      We’ll advise you at the start how long we think it will take. Whatever the situation, we always aim to resolve your dispute as quickly and efficiently as possible. We understand that this is a difficult time, and we’re here to help you through.

    • Will I Have To Go To Court?
    • Most disputes can be resolved by negotiation and discussion, without having to go to court. However, sometimes this isn’t possible and court is the only way.

      We understand that most people would prefer to keep their dispute out of court, and we will always do everything we can to try and reach an agreement by mediation. However, if your dispute does have to go to court, we will support you at every stage. We have the experience to handle court disputes efficiently and effectively, to achieve the best outcome for you.

    • How Long Do I Have To Make A Claim?
    • Depending on the type of claim you’re making, you may need to start your claim within six months of the grant of representation being issued. In all cases, it’s very important to seek legal advice as soon as possible, so you aren’t prevented from making a valid and potentially valuable claim. We’ll be able to advise you on your situation and how we can help.

    • How Can I Cover The Cost Of My Claim?
    • There are various ways you can cover the cost of your claim, depending on your case. These include:

      • Legal Expenses Insurance
      • Conditional Fee Agreement (‘No Win No Fee’)
      • Payment on conclusion
      • Private monthly billing.

      We understand that funds and assets may be tied up in the disputed estate, and we’ll be as flexible as possible to ensure that’s not another worry on your mind. We’ll discuss the different payment options with you at the start.

      Your first consultation with us is completely free, and there’s no obligation to continue.

    • Meet The Team
    • Our Wills, Trusts and Estate Disputes team is the largest in the UK and we have offices across the country. We are experienced in managing high net worth and ultra high net worth claims as well as less complex ones.

      We’ve resolved some of the country’s most high profile disputes and are particularly experienced with the unique challenges of multi-jurisdictional wealth management structures, rural property and inheritance tax.

      We are recommended by the leading legal guides and pride ourselves on the strong relationship we build with our clients in what is often a very trying time.

      Meet the team

My legal team has held my hand throughout, they have been incredibly patient and understanding"

Joy Williams, client

Frequently Asked Questions

What Is Testamentary Capacity?

Testamentary capacity is the legal term used to describe a person’s mental capacity or ability to make or alter a testamentary document, such as a Will.

In general terms, someone must be ‘of sound mind’ to make or alter a Will. The legal test for someone having testamentary capacity is if they:

  1. Understand that they are making a Will
  2. Understand that the Will will dispose of their assets after their death
  3. Understand what assets are disposed of by the Will
  4. Can review the beneficiaries who may have a claim on their estate
  5. Aren’t suffering from mental illness which affects their ability to decide the fate of their estate.

If there is evidence that someone did not have testamentary capacity when they made or altered a Will, that Will may be invalid and could be contested.

A solicitor or Will writer should only accept instructions from clients that they believe to have testamentary capacity. As such, they may request medical evidence before accepting instructions or ask a medical professional to act as a witness.

It is sometimes sensible to get medical evidence about your own testamentary capacity when making or altering a Will to defend it against potential challenges in the future.

If you're worried that someone didn't have testamentary capacity when they made a Will, we can advise you. Call today on 0345 604 4895 – or fill out our online contact form and we’ll call you back.

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What Conditions Can Cause A Loss of Testamentary Capacity?

A variety of conditions can cause either a temporary or permanent loss of testamentary capacity, including:

  • Mental illness
  • Alzheimer’s disease
  • Dementia
  • Serious physical illness
  • Brain injuries
  • Age-related memory loss.

If a testator suffered from one of these conditions when making or changing their Will, that Will might be invalid and you may be able to contest it. Call today on 0345 604 4895 – or fill out our online contact form and we’ll call you back.

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How Do You Prove That Someone Lacked Testamentary Capacity?

We will get the testator’s medical records and work with a medical expert to determine their state of mind when making or altering their Will.

If a medical assessment at the time found that the testator did have capacity, we’ll review this assessment and may counter it with our own evidence and expert testimony. We can also carry out a retrospective assessment if none was made at the time.

If you're worried that someone did not have testamentary capacity when they made their Will, we can help. Call today on 0345 604 4895 – or fill out our online contact form and we’ll call you back.

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