Naturally, the older the person making or changing a will, the more likely it can give credence to an allegation of lack of mental capacity.
The legal test for capacity to make a will dates back to the 1870 case of Banks v Goodfellow and requires anyone making a will to:
- Understand the nature and effect of making a will;
- Understand the extent of the property of which they are disposing;
- Understand and appreciate the claims to which they ought to give effect, and;
- Must not suffer from a “disorder or delusion” which could bring about a disposal they would not otherwise have made.
Inevitably, as age-related illness rise, claimants seek to attack wills on the basis that the person making the will may have been suffering from a “disorder or delusion” of the mind which could invalidate the will.
One way to avoid these allegations is to obtain a medical opinion at the time of preparing a will where capacity could be brought into question at a later date.
Interestingly, the same level of capacity is required in order to revoke a will as is required to make one.
Lack of knowledge and approval
A person making a will must know and approve of the contents of their will before it is executed.
A claim of "lack of knowledge and approval" is often combined with a claim that the person making a will did not have the requisite level of capacity.
Generally, a contemporaneous record of someone reading over their will in front of their lawyer and witnesses should be sufficient to rebut this kind of claim.
Claims of undue involve allegations that someone has made a will in such terms they would not have otherwise made had they not been subject to someone’s undue influence.
However, these claims rarely succeed given that a claimant would have to prove that actual undue influence took place and is “inconsistent with any other hypothesis” as to why the will was drafted in certain terms.
If a will is not signed or acknowledged by the person purported to have made it, then it goes without saying that it will be invalid.
In cases involving allegations of forgery, the court will usually require a forensic examination report by a handwriting expert to help determine the issue.
Financial provision claims
It is possible to seek a greater share of an estate where there is a valid will or intestacy by pursuing a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The 1975 Act, as it is commonly known, allows certain categories of claimant to apply to court to seek financial provision from an estate.
The categories of claimant include:
- Spouses and civil partners of the person who died (as well as former spouses and civil partners);
- Anyone who, for the last two years of the deceased’s life, was living in the same household as them as their husband or wife;
- A child of the deceased;
- A child treated as a “child of the family”;
- Any person who immediately prior to the death of the deceased was being maintained by them.
There have been a flurry of 1975 Act cases in recent years.
While many cases have been successful, the courts have stressed that the legislation is not designed to compensate disappointed beneficiaries or provide vast windfalls, but rather to do “the minimum equity to do justice”.
Questions appear on the last page of this article.