When making a Will that is valid and legally binding under English law, there are certain conditions that must be met in relation to that person’s mental capacity. The person making the Will (called the Testator) must have what is called Testamentary Capacity and this not necessarily the same as having full mental capacity.
For initial advice and guidance call Co-op Legal Services on 03306069584 or contact us online and we will help you.
There are three conditions which must be met when making a Will. The person making the Will should:
- Understand that they are making a Will, and that it will not come into effect until they have died
- Understand generally what assets and liabilities their Estate consists of
- Understand that the people who are not included in the Will might have a claim against the Estate
Where a person making a Will is particularly elderly, ill, or suffering from a disorder of the brain, it’s especially important that the Solicitor preparing the Will ensures the Testator meets these conditions.
If a Solicitor has any doubts regarding the Testator’s mental capacity, they should obtain the opinion of a medical professional. If mental capacity is confirmed, the Will should ideally be witnessed by the same medical professional. A record of the medical professional’s examination can then be kept with the Solicitor’s file in case any doubts are raised at a later date. This is known as the Golden Rule.
Suggesting that a person’s mental capacity be examined before their Will is made can be a difficult conversation to have. However it can be incredibly important from a legal perspective.
Although following the Golden Rule cannot exclude the possibly of the Will being disputed on the grounds that the Testator didn’t have the required mental capacity, anyone disputing it will find it significantly more difficult if there is medical evidence, and if a medical professional was present when the Will was signed.
Challenging a Will
With the general population tending to live longer, more and more people are being affected by degenerative diseases such as Alzheimer’s. In cases such as these, a person’s mental capacity can decrease over time, and cognitive function can be good on some days and far worse on other days.
For a Will to be challenged on the grounds of lack of mental capacity, it must be proved that the Testator did not meet the criteria listed above at the time that the Will was signed.
If you have any reason to believe that the Testator did not have the necessary mental capacity to make a Will, it is essential to get legal advice as soon as you can. It may be a good idea to enter a Caveat through your local Probate Registry. This will prevent the Will from being submitted to Probate, and prevent a Grant of Representation being issued while you gather evidence to back up your potential challenge.
It would also be a good idea to speak to the Solicitors or legal professionals who prepared the Will in the first instance, and request as much information as possible about the circumstances of the preparation and execution of the Will. If it’s possible, also try to speak to any medical professionals who would have had regular contact with the Testator. This will help you confirm whether he/she was suffering from an illness which might have impaired their mental capacity and ability to understand the Will they signed.
It should be noted that in cases where a Will is successfully challenged, and the Court finds that the Will is not valid, then the Estate will be distributed in accordance with any previous Will. If no previous Will exists, then the Estate will be distributed in accordance with the Rules of Intestacy.
For initial advice and guidance call Co-op Legal Services on 03306069584 or contact us online and we will call you.