By Nathan Marsden –
Death is an uncomfortable subject for all of us – particularly when it concerns family or friends. If somebody close to you has passed away, challenging their will is probably the last thing on your mind. But the pain of losing a loved one could well be compounded if you come to realise that your spouse, family member or parent has altered their will while suffering from mental impairment.
With everybody living longer, and age-related problems like Alzheimer’s on the increase, cases of people being excluded from their inheritance after an apparent late-in-life change of heart are becoming more and more prevalent. As a result, more people are seeking advice on challenging a will.
At the same time, everyone has a fundamental legal right to decide exactly how their estate is divided after their death. That means it’s vital that anyone who is fully capable of writing and understanding their will, makes sure that their last testament is capable of resisting legal challenges. Whilst no will can be completely infallible, having it written professionally will ensure yours is as watertight as possible.
All this makes it so important that our clients understand the legal grounds for challenging a will on the basis of a lack of mental capacity. Here’s what you need to know:
- The person making their will must be capable of understanding that they are making a will and disposing of their assets on death.
- They must also be aware of the extent of their estate.
- They must be able to understand the likely entitlements friends and family members might assume concerning the estate.
- They must not be under the influence of any mental impairment which has clouded or affected their judgement.
- If a will appears to be properly written, it is presumed to be valid.
- However, if you can establish that there is ‘reasonable doubt’ over one or more of the conditions listed above, any person who wants to argue that the will is valid must then prove that it is, in fact, valid.
- If a will is found to be invalid, the previous will is used. If there’s no previous will, the estate is distributed in accordance with the rules of intestacy.
Mental capacity is a complex area of law, so it’s important that whether you’re drawing up a will, or are concerned about someone else’s will, you get professional legal advice:
If you’d like to know more about challenging a will or writing a will, contact us now.