Challenging A Will Due To Lack Of Testamentary Capacity

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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

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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.

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.

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.

Related Information - Challenging A Will Due To Lack Of Testamentary Capacity

Invalid Wills – Our solicitors can help you contest an invalid Will to ensure your loved one’s wishes are carried out
Contesting A Will – What to do if you're left out of a Will or you believe the Will of a loved one isn't correct
Contentious Probate – We can help if a valid Will is mishandled by the Executor
Forged Wills – We can help you defend an estate against forged Wills and other forms of probate fraud

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