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FDR Law Legal Clinic - Questioning Mental Capacity

View profile for Jennifer McGuinness
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Legal advice from Jennifer McGuinness, an expert in Will disputes based at FDR Law offices in Frodsham
 
Q: My mother had Alzheimers disease when she made her Will.  I do not agree with the contents of the Will, can I challenge it?
 
A: If your mother was not of sound mind when she made her Will it may be possible to challenge the validity of it.  The fact that she suffered Alzheimers disease (or indeed any other mental health illness) is not of itself grounds to establish the Will was invalid.  It is necessary to establish that the person making the Will had “testamentary capacity”.
 
In order for a person to have the necessary capacity to make a Will they must understand:
 
  • The fact that they are making a Will and its consequences.
  • The extent of their property and assets.
  • The claims of those who might expect to be left something in the Will.
  • They must not suffer any delusion of the mind which influences how they deal with  disposing of their  property  i.e leaving legacies in thieir Will which they would not have made had they been of sound mind.
In order to successfully bring a claim it  will be necessary to prove, with medical evidence, that your mother did not have capacity.
 
A good solicitor or Will writer will assess, when taking Will instructions if medical opinion on the Will maker’s capacity ought to be obtained before the Will is signed.  They should also themselves record how they assessed the Will maker’s capacity. If these practical  steps have been taken it makes the Will more robust and less susceptible to challenge.
 
If you consider that your mother did lack capacity then speak to a solicitor who specialises in disputed Wills, who will then be able to advise on the merits of pursuing a claim and if appropriate the funding options. 
 
For more information about Will disputes, contact Jennifer McGuinness at FDR Law on 01925 230000 or by email jennifer.mcguinness@fdrlaw.co.uk