Your Will is an important document. It not only gives you peace of mind but provides your executor with clear instructions for your affairs to be taken care of in accordance with your wishes as to who will inherit from you. Despite this, bereaved families are increasingly going to court to challenge Wills. Mental capacity, or the lack of it, is the most common ground of challenge.
You must have mental capacity to make a valid Will. By leaving a Will, you are presumed to have been mentally sound, to have known what you were doing when you made it and not to have been suffering from any mental condition which affected your decisions. Often your mental capacity is questioned when you have made inadequate or no provisions in your Will for children and other dependents. This may be due to you having a mental condition such as Alzheimer’s or dementia when you made or altered your Will. Perhaps it is because you were experiencing an intense grieving period following bereavement or were put under pressure to make your Will in a certain way. All these may affect the state of your mind and could allow someone to challenge your wishes on the grounds that you lacked capacity.
Proving that you had mental capacity is not easy. Evidence will be required from those who were present at the time you made your Will, but they may be difficult to trace. Family members and close friends can assist in establishing your capacity but if this is not enough, medical evidence may be sought to prove you had capacity when you made your Will.
You can reduce the risks of your Will being disputed. If you are writing your Will by yourself, keep detailed notes and/or include a Letter of Wishes explaining the reasons behind your decisions. You may also consider adding a forfeiture clause in your Will. This means that anybody who challenges the Will may lose their inheritance. However, all these may still not be sufficient. The safest way is for you to have your Will prepared professionally by a Solicitor who knows the rules and can advise you on your obligations. They can ask for a medical opinion if necessary, to support your decisions. This considerably reduces the risk of a costly and emotionally challenging legal contest for your family.
If you are considering making or reviewing your Will and need expert legal advice on making your Will as challenge-proof as possible, please contact me, Sangeeta Moore at The Law House Solicitors on 020 3432 1084 or 07825 838 922. Alternatively, please e-mail me at firstname.lastname@example.org