Financial & Legal News

Family successfully challenges Will due to lack of capacity

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When an elderly lady left her entire estate to someone outside of the family, her family became suspicious and challenged the will.  After almost 4 years our Inheritance and Will Disputes department were able to successfully conclude the matter and the majority of her substantial estate was passed to the family.

Challenging a suspicious Will

In this case, the deceased sadly passed away in July 2018 but had made a new will in March 2016 (‘the disputed will’) when she was 84 years old. The second disputed will, which Pearson’s Inheritance and Will Dispute solicitors challenged, appointed another law firm as executors and stated that her estate pass to Mr X as sole beneficiary.

Prior to making the second will our client’s auntie had sadly suffered from mixed dementia, both Alzheimer’s and Vascular dementia and had been under the care of the Mental Health Services team for a number of years prior to the making of the disputed will.

“This was a long and protracted case and when we obtained the medical records for the deceased they indicated a number of significant events from 2012 onwards showing she did not have the capacity to make a new will. The medical records clearly showed that the deceased fell short of the required standard of capacity and we brought a claim that the 2016 will was invalid due to a lack of capacity,” said Head of Inheritance and Will Disputes, Laura Pracy.

Banks v Goodfellow

As set out in Banks v Goodfellow [1875] AC 161 when assessing capacity the testator must be able to understand:

  • The nature of making a will and its effects;
  • The extent of the property which she is disposing;
  • Be able to comprehend and appreciate the claims to which she ought to give effect;
  • Have no disorder of the mind that perverts her sense of right or prevent the exercise of her natural faculties in disposing of her property by will.

“Further, when considering the issue of capacity a very important factor is whether there was good reason for the testator to make a new Will in the terms she did,” added Laura.

Markou v Goodwin Case

In the case of Markou v Goodwin [2013] 3 AER (D) 329 the explanations are given for excluding potential beneficiaries were either confused or at odds with the facts. Even though the evidence showed the testator had had considerable understanding and had wanted to benefit her neighbour, the former matters could not be explained and the Court was not satisfied that she had the capacity.

In this case, there was no good reason for the deceased to change her will and a doctor commented that he believed the deceased’s memory impairment was clouding her judgment.

“In our case we also alleged that there had been undue Influence exercised by Mr X on the deceased and it became apparent that during that time he also had access to the deceased’s bank accounts and was withdrawing large sums of money. We claimed that he had also exercised either actual or undue influence over her,” said Laura.

The case acts as a warning to families to make sure an up to date will is made and if there are family members involved that whenever possible they have clear and transparent discussions about inheritance. It also highlights the importance of getting good legal advice on lasting power of attorney, for both health and welfare and property and financial affairs.

Client Feedback

“My aunt had managed to change her Will and left everything to Mr X although she was suffering from Alzheimer’s. Laura was helpful and sympathetic from the word go and during the next three and a half years her clear and concise advice finally resulted in the outcome we asked for,” said our client.

This case did not proceed to Court and Pearson Solicitors were able to successfully conclude the matter and secure the majority of the residuary estate to pass to the family members bringing the proposed claim.

How can we help

For helpful advice on challenging or contesting a will contact our Inheritance and WIll dispute solicitors now on 0161 785 3500 or

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.

Written by Laura Pracy


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