To make a will, there are certain formalities that must be followed to ensure that the document is valid. If the individual making the will is not under undue influence, has the appropriate mental capacity and the will is not fraudulent, it can make it harder for non-beneficiaries to challenge the will.  Unfortunately, some people can lack the requisite mental capacity before they have even drafted a will, leading the way for probate disputes and arguments to arise. So, how can these individuals draft valid wills?

Here at Van Eaton Solicitors, we can assist our clients involved in all forms of estate disputes, whether they are attempting to fight a claim or bring one against the estate of a deceased person. If you believe a will to be invalid, you should seek the help of a qualified civil litigation solicitor as soon as possible, to stop a grant of probate from being issued. When someone lacks the appropriate mental capacity, there are different procedures that need to be followed when making a will.

 

What is Testamentary Capacity?

Testamentary capacity is the legal term used to describe someone’s mental ability to draft a valid will. When making a will, the testator’s mental capacity must be sufficient, otherwise, the document will be rendered invalid. To prove that they have the mental capacity, the testator must understand the will and its contents, the extent of the property that they are distributing, and have no mental disorder that “perverts their sense of right.”

 

Can I make a Will if I Have ‘Insufficient Capacity’?

In some instances, people delay making their will, whether it is due to unforeseen circumstances or the fact that they simply may keep forgetting. Unfortunately for some people, they can reach a stage where they no longer have the testamentary capacity to make rational decisions, whether that be due to a developing condition such as Alzheimer’s disease or they have suffered an accident that has affected their brain function.

If an individual lacks testamentary capacity, they will not be able to make a will. However, this does not mean that it is too late for them. It may be appropriate to ask the Court of Protection to make a will on behalf of someone who lacks testamentary capacity. This is called a ‘statutory will.’

A deputy or attorney will be appointed to handle someone’s affairs and the estate should they be unable to deal with matters themselves. There are situations where the court’s permission is required, such as the making of a will on behalf of a vulnerable person. When applying for a statutory will, the evidence must be submitted to the court for consideration, where the court will decide whether a statutory will is or is not in the vulnerable person’s best interest.

A vulnerable person’s best interests and wishes will be of paramount importance and concern. The court will also consider other relevant factors in line with these wishes, which may have been expressed in a written statement or in a previous will. As a family member of someone lacking mental capacity, it can be hard to understand exactly which steps to take. When matters become contentious with external parties, our litigation team have specialist knowledge in a wide range of probate disputes, implementing effective alternative dispute resolution to keep your claim out of court wherever possible. To find out more about our will dispute services, please visit us here.

How We Can Help

Our experienced team here at Van Eaton Solicitors can help you settle your probate disputes as efficiently and effectively as possible. If you are worried that a will is invalid, or you are concerned that a loved one is being taken advantage of, we can help analyse your case and gather the appropriate claims to get the results you deserve.

To find out more, please give us a call on 0208 769 6739. Alternatively, you can fill out our online form.