Will contesting

S

ShannonB

Registered User
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Hi
I would appreciate any legal advice.
My father who had vascular dementia died this year, he changed his Will seven weeks before he died. I believe this was due to undue influence and coercion by his estranged daughter who only came involved in his life in nine months prior to his death. The Will leaves her as sole beneficiary cutting his three children out. A significant change from his Will made five years ago dividing everything equally between four of us. A caveat is in place and we intend to contest this new Will.

My question is - when does a Solicitor have to obtain confirmation that the person making the Will was of sound mind? Is there a legal timeframe for when this should be obtained? My father’s solicitor did not write to his GP to confirm testamentary capacity until four weeks after the Will was written, he was deemed capable on the day of the capacity assessment but there were no notes about having already made this new Will. He had memory problems and reasoning fluctuated. I don’t feel the assessment was substantial. More concerning is that it was sought almost one month after the Will was made. Surely a solicitor should get this before undertaking such a dramatic change to an existing Will on an elderly person who was clearly unwell at the time?

My hope is to have this new Will invalidated, would this question on capacity not obtained at time of Will writing be enough for the new Will to be revoked?
Thank you
 
"would this question on capacity not obtained at time of Will writing be enough for the new Will to be revoked? "

That is for a Judge to decide.

This will cause you difficulty:
"he was deemed capable on the day of the capacity assessment "

mf
 
The guidelines issued by the Law Society state that solicitors should seek evidence of testamentary capacity at the time of preparing the will for an elderly client. The guidelines also state the solicitor should prepare an attendance note of the meeting at which the will was discussed. The Probate Office itself will carry out its own assessment (provided you put it on notice) if your father had testamentary capacity or not.

Everything will hinge on whether your father's GP can provide an affidavit of testamentary capacity at the time. If the GP can swear an affidavit that your father had testamentary capacity 4 weeks after signing the will, then it would be difficult to argue that he did not have testamentary capacity at the time of signing the will. In order to swear such an affidavit he should have carried out some level of rudimentary examination of your father.

One of the issues of assessing Dementia is trying to assess what stage your father was at. (There are 7 stages of Dementia.)

Jim Stafford
 
mf1 said:
"would this question on capacity not obtained at time of Will writing be enough for the new Will to be revoked? "

That is for a Judge to decide.

This will cause you difficulty:
"he was deemed capable on the day of the capacity assessment "

mf
Click to expand...
Thank you, unfortunately I fear we will end up in court
 
Sorry for your loss.

There's no 'unfortunate' about it really. If you want your father's will overturned, the only way to do that is via court order.

Do your sums first, legal fees will be significant. Never forget the lesson of Jarndyce vs Jarndyce.
 
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