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5 things to know about testamentary capacity

WILL DISPUTE CLAIMS – COMMONLY AVAILABLE KEY RESOURCES WHICH WE USE TO WIN YOUR WILL DISPUTE AND WILL CONTEST CLAIM (INVARIABLY UNDER OUR NO WIN NO FEE ARRANGEMENTS)

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, reveal the key resources which they use to win each claim most of which you can obtain yourself

Resources which most people can use to help win their Will dispute or Will contest claim

There are simple questions to answer in most inheritance and Will contest and Will claim disputes concerning a Will before any claim should be brought. For example:

1. Is my claim against the legal validity of the Will worthwhile?

Some potential clients say that they are more concerned with “principles” than the money; however, a court will not permit someone who has no potential benefit from an estate to pursue a claim against the legal validity of a Will. Further, if the estate is tiny, then even armed with principles, a successful claim in relation to a small or non-existent estate could end up costing the successful claimant a considerable sum of money.

2. How can I check I am a near relation to the deceased and that the estate is of sufficient size?

  • Death certificates – for deaths within six months go to the nearest County Council Registrars Office.
  • For example for deaths in Kent (https://www.kent.gov.uk/births-ceremonies-and-deaths/deaths/death-certificates). For deaths in Essex (https://www.essex.gov.uk/certificate-copies)
  • For births, deaths (after six months), marriage certificates and adoption certificates go to the General Register Office (https://www.gro.gov.uk/gro/content/certificates/menu.asp) which is amazingly efficient. Phone them if you can’t find exactly what you want using their on-line service.
  • Estate value – usually this comprises a house, apartment or bungalow and some liquid assets (for instance savings and investments). The latter will not be publicly available. However there are plenty of resources to help you to determine the value of a property. Simply type the address of the property into Google and use one of the property platforms (https://www.zoopla.co.uk/) to determine the value. For information about whether the deceased still owned the property when he/she died and to check he/she hadn’t withdrawn the value by way of equity release, you can search the Land Registry (https://www.gov.uk/search-property-information-land-registry). It just costs £3 and anyone can do it!

3. How can I find out if the deceased made a Will or if near relatives who died before him/her made a Will which might have substantially increased the size of the estate and if I am entitled to a share of his/her estate under the recent Will or if that Will is contested, under a previous Will?

  • Have a look at our simple guide on obtaining Will file records in relation to Will dispute and Will contest claims at https://www.willclaim.com/how-to-contest-a-will-a-noddys-guide-no-disrespect-to-noddy-2/
  • Start by asking those persons who you think may have access to the Will to provide you with a copy
  • If a Grant of Probate or Letters of Administration have been made (see https://www.willclaim.com/claim-types/contesting-a-will-after-probate/) then you can obtain a copy of the Grant, Letters of Administration and the Will from the Probate Registry which also offer an on-line service (https://www.gov.uk/search-will-probate). The cost is only (currently) £1.50. There is though a short delay before the documents are provided via the on-line portal.
  • If you have a genuine dispute against the legal validity of a Will (supported by some evidence, for instance, that the deceased had dementia or Alzheimer’s Disease at the time the Will was made) then you can ask the Solicitors who made the Will to produce their file and answer questions about the formation of the Will. However, the request (which is made by reference to an case called Larke v Nugus – see https://www.thegazette.co.uk/all-notices/content/101713) should come via Solicitors that you instruct (such as us under a possible no win no fee arrangement), otherwise it might be ignored.

4. How can I get hold of the medical records that I need to show the deceased couldn’t have had legal testamentary capacity at the time the Will was made and which are likely to be required to prove my Will contest and Will dispute claim?

It should be possible to obtain these where you have a genuine inheritance or Will claim arising from the deceased’s death, pursuant to section 3(1)(f) of the Access to Health Records Act 1990. We have copied and pasted that section below for reference:

3Right of access to health records.

(1)An application for access to a health record, or to any part of a health record, may be made to the holder of the record by any of the following, namely—

F1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(cc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2(ee)where the record is held in Scotland and the patient is incapable, within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4) in relation to making or authorising the application, any person entitled to act on behalf of the patient under that Act.]

(f)where the patient has died, the patient’s personal representative and any person who may have a claim arising out of the patient’s death.

Unfortunately, again, in our experience, it is far easier for Solicitors relying on this section to obtain medical records than a so-called lay person. Once again then this is likely to be a matter on which your no win no fee Will dispute or Will contest claim Solicitors should be instructed to assist.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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