A disappointed would-be beneficiary can challenge a will on the basis that the testator lacked testamentary capacity when the will was executed.
‘Testamentary capacity’ equates with knowing and approving the contents of the will. There can be disputes, particularly if there has been a long interval between the signing of the will and the person’s death, concerning whether he/she had sufficient understanding of the effect of the document. It can be very difficult to secure adequate evidence of capacity at this late stage.
Avoiding the Problem
If the testator is losing mental capacity it does not necessarily mean that he/she cannot make a valid will. An experienced solicitor can assess capacity and if necessary will suggest that medical evidence be obtained.
A solicitor will keep records of the will-making process, to be produced at a later date if the will is challenged.
If the testator’s wishes are or appear contentious the solicitor can produce a contemporaneous memorandum to be signed by the testator and kept with the will.
Experienced solicitors at Tassells can advise testators how to avoid problems arising once their estates come to be administered. Please contact Ann Astbury, Ian Wessels or James Matthews.
20 West Street
T: 01795 5333337
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