CAN YOU CHALLENGE A WILL MADE IN A HOSPITAL OR CARE HOME?
Finding out that a relative changed or made a will while in hospital or a care home can raise doubts, especially if the new document is significantly different from what they said they wanted in the past. If you are in this position and something does not add up, it may be worth digging deeper.
A will made in a care setting is not invalid for that reason alone. But the wider story behind it is often what gives someone grounds to question its validity.
Why wills made in care settings can raise concerns
When someone is in hospital or a care home, the circumstances in which the will is made can be very different from normal life.
Serious illness or cognitive decline can affect their ability to make decisions. Connections with the wider world can become harder to maintain, and those with regular access may have far more influence than they otherwise would.
Where those conditions exist, questions about how a will came to be made are not unreasonable. For example, where:
- there was little opportunity to take independent advice or choose who was involved in arranging the will
- contact with family was limited in the period before signing
- the will was made shortly before death or during a period of declining health
- the person who stood to benefit was also the one who arranged it, or there were signs the outcome was being steered
- the new document made a sudden change that cut out family members who had always expected to inherit
What the law looks at
When a will made in hospital or a care home is challenged, the court may look at several things:
- whether the person had the mental capacity to make the will
- whether they knew and approved its contents
- whether they were free to make an independent decision
- whether the will was properly executed
Where the circumstances raise real suspicion, the court may require those relying on the will to show that the person understood and approved what they were signing.
Capacity and undue influence are separate issues, but the same set of facts can raise concerns about both.
For example, illness or confusion that affects a person’s judgment can also make them more susceptible to manipulation. And where that manipulation comes from someone whose support they have come to depend on heavily, they may have little ability to push back against it.
Mental capacity and medical evidence
Capacity is not a general assessment of how the person appeared day to day. It is assessed in relation to the will-making process itself, specifically at the time the instructions were given and the will was signed.
The legal test, set out in Banks v Goodfellow [1870], requires that the person:
- understood what making a will means
- had a reasonable sense of what they owned
- understood the people who might expect to benefit
- was not affected by a disorder of the mind that distorted their decisions
That last point often causes difficulty. Someone may appear settled, acknowledge family members and hold a conversation, but still lack the level of understanding the law requires when making a will.
The court looks at the available evidence around the time the will was prepared and signed. The closer those records are to when the will was made, the more weight they may carry.
Where a will is made by an elderly or seriously ill person, guidance known as the Golden Rule, from Kenward v Adams [1975], recommends that a medical practitioner assesses capacity and records their findings. This is good practice rather than a strict legal requirement, but where it is not followed, it can become a point of scrutiny if the will is later challenged.
Medical records are often important evidence in these cases. Notes made by doctors, nurses and care staff in the period leading up to the will can give a clearer picture of the person’s state of mind and capacity at the relevant time.
Undue influence and control
Undue influence means coercion, not simply persuasion. It can look like controlling who the testator saw, what they were told, or turning them against other family members through false information. That last type has its own legal label: fraudulent calumny. None of it has to be obvious or heavy-handed to undermine a person’s true intentions.
It is not easy to prove though. There is no presumption of undue influence, and the case for it must be made by whoever is bringing the challenge. The evidence must show actual coercion. That is a high bar, and it is worth understanding that before deciding how to proceed.
That said, the setting is not irrelevant when considering undue influence. Power imbalances can easily take hold where access is limited and those closest to the testator carry disproportionate influence. A court will weigh that context when considering whether coercion was plausible and whether there was any other likely reason for a will being made in the way it was.
What evidence is needed to challenge the will
Proving a challenge means building a picture from whatever was recorded at the time. That picture usually has three parts.
First, the paper trail around the will itself. How was the appointment arranged, who was involved, and what was noted down. Where no solicitor was used, that gap can be significant in itself.
Second, medical documentation from around the time of signing. Not a general health history, but anything that speaks to the testator’s state of mind and capacity around the time the will was prepared and signed.
Third, evidence of what the testator wanted before the final will was made – earlier wills, messages, letters, conversations that were recorded. A significant change from earlier wills raises concern. Working out whether there is a credible explanation for it is often where a case starts to come together.
Why specialist advice matters when challenging a will made in hospital or in a care setting
Cases like this often depend on evidence that is incomplete and hard to piece together. The circumstances can be difficult to reconstruct, records may not be kept indefinitely, and the legal questions around capacity and coercion require careful handling. Knowing what to look for, where to find it, and how to use it is not straightforward without specialist experience.
Will disputes are all we do. We understand how these cases are built from the ground up, know which evidence carries weight, and how to identify where a challenge is realistic.
If you would like to discuss whether you may be able to challenge a will made in hospital or a care home, we are here to give you a clear and honest picture of your position. In some cases, we act on a no-win, no-fee basis.
Get in touch to arrange your free initial call.