A recent newspaper article1 highlighted that as many as 10,000 people in England and Wales are disputing Wills every year. Most of these disputes are settled out of Court but in 2021-2022, 195 such disputes progressed to a Court hearing. This number is increasing year on year. Such claims are made under the provisions of the Inheritance (Provision for Family and Dependants) Act (1975).
The increase in challenges to Wills is being driven by two main factors: the aging Baby Boomer generation who are property-rich and thus have sizeable and complex estates to bequeath, coupled with there being more people who may have a claim on the deceased’s estate due to an increase in people cohabiting, second marriages and blended families- for example where children from previous marriages are disinherited. In addition to this, the number of people now living with dementia is increasing.
Family members challenging the validity of Wills often cite the testator’s poor cognition at the time of making the Will. Unfortunately, Wills that have been poorly drafted or where steps have not been taken to complete a Testamentary mental capacity assessment (to ascertain and evidence whether the testator is able to make a Will) are left open to challenge in this way.
To ensure that your Will is robust, it is imperative to consult a legal professional specialising in Wills, who will be able to assist you in drafting a Will that could withstand a future legal challenge. In addition to this you may be advised to complete a Testamentary mental capacity assessment. This is most common if you have a health condition that may affect your cognition, such as dementia, stroke, brain injury or learning disability.
It is a common misconception that people living with dementia are not able to make a Will. People with any kind of cognitive impairment may be able to be supported to make the required decisions about their Will.
TSF Assessments Ltd are trusted by Solicitors across England and Wales who routinely choose our mental capacity assessment service to complete Testamentary mental capacity assessments. If the outcome of such an assessment evidences that, at the time of making their Will, the person had capacity to do so, our comprehensive report will sit alongside the person’s Will, meaning that a successful challenge to the Will on the grounds of lacking mental capacity would be unlikely. This might seem like a confident statement to make. Our skilled and experienced mental capacity assessors adhere to the case-law of Banks v Goodfellow (1870) when assessing Testamentary capacity. This piece of case law has stood the test of time and is still recognised as the correct test for Testamentary capacity, setting out the information that a person must understand in order to be able to make a Will.
If you are concerned that your Will may be open to challenge because you experience difficulties in cognitive functioning, a Testamentary capacity assessment will establish whether you have capacity to make a Will. If you have capacity to make a Will, you can then be reassured that you have taken steps to deter any challenges to your Will in the future. In the event that you lack capacity to make a Will, it is possible for an application to be made to the Court of Protection for a Statutory Will. Such an application would take your views and wishes into account. We would advise that you speak to a specialist Solicitor for assistance with this.
1 The Guardian 24 February 2024
