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Contesting a Will on grounds of mental incapacity

View profile for Michelle Hayter
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This is a difficult subject for everyone, especially when it concerns family or close friends. Challenging a Will is emotionally charged but you may realise after a loved one has died that they either changed, or wrote their Will whilst suffering from mental impairment. Everyone has a fundamental right to decide how their estate is divided after their death, but now everyone is living longer and with age-related memory problems on the increase, more and more people are seeking advice on contesting an ‘unexpected’ Will.

In order for someone to make a valid Will there are several conditions that must be met.

These are:

  • They must understand that they are making a Will and disposing of their assets after death
  • They must be aware of the extent of their assets/ estate they are leaving in the Will
  • They must understand the likely entitlements that friends and family members might assume concerning the estate
  • They must not be suffering from any mental condition that may adversely affect their judgement

Michelle Hayter, Dispute Resolution Partner, says “You may also wish to challenge a Will on the basis of undue influence. This is when you believe that someone may have exerted pressure on the deceased to change their Will.”

If a Will appears to have been properly written it is assumed to be valid but 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 prove that it is so. If a Will is found to be invalid the previous Will is used. If there is no previous Will the estate will be distributed under the rules of intestacy – that is – as if there is no Will at all.

For a free initial meeting please call 01202 499255 and Michelle or a member of her team will be happy to discuss any questions you may have.

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