Has anyone ever challenged a will?

[Coldwine75]

Hi

Don't want to give details but may need to make a claim or contest a will of someone who passed. I have heard its a long process, can be stressful etc, hoping for no win no fee if do proceed.
Just wondering if anyone out there has been through it?
Am i unreasonable to do so, even if the person was estranged from the deceased .

Take the free legal advice session and see what your solicitor says, but I don’t think no win, no fee is available in contentious probate cases.

I know someone who did, but in Scotland, so very easy to do. In this case 50% had been left to each side of the family (the two children of the deceased and their children). The woman I knew challenged the will to increase her own share at the expense of her own children. Such a strange case. Surprisingly, she's managed to keep a reasonably good relationship going with her children somehow.

@GETTINGLIKEMYMOTHER

I once met someone who did, for what you might think entirely justifiable reasons. A parent with fairly early dementia had a live-in carer who quickly turned him against his formerly very close family, prevented him from seeing them, subsequently took him abroad and married him, and evidently got him to make a new will entirely in her favour. And it was a substantial estate. The family still lost. I have a feeling the dementia had not been officially diagnosed, but maybe that would not have made much difference anyway, since I was told that in court the woman was very clever and plausible.

There are cases when people with Alzheimer's or dementia had their will upheld because it wasn't proven that the illness affected the will. There are lots of cases with people with variously severe mh issues and ilnesses where it was deemed not to have affected the will. There is a test used from Banks v Goodfellow iirc

There are cases when people with Alzheimer's or dementia had their will upheld because it wasn't proven that the illness affected the will.
There are lots of cases with people with variously severe mh issues and ilnesses where it was deemed not to have affected the will.
There is a test used from Banks v Goodfellow iirc

Absolutely. A diagnosis of dementia, or psychiatric illness, doesn’t automatically mean someone lacks testamentary capacity. I’m a psychiatrist for older people and regularly assess people in this regard, and very often those with dementia retain such capacity for quite some time.

My Godmother did, it involved fraud that her family member committed (altering a will and forging a signature) It cost her and her husband all their life savings and their house, and by the time she won, there was nothing left anyway, it had gone to solicitors.

Even lawyers, whose salaries are paid by its failure, admit mental capacity laws don’t work.

Judges are petitioning for the MCA to be reformed at the moment.

Mind is a fascinating place. If you look at testamentary capacity in law of succession they are just... Fascinating. A delusion of daughter being a spawn of a devil. That a son is trying to kill them. Or an international sex ring. Or that prime minister is coming in secretly for private time fisguised as fish seller.

TiltTopTable
That is very sad. It could maybe be rectified by your mother making a will now, specifying that the proceeds from the house when eventually sold are to go to her 4 children. Not sure if the new husband would have the right to live in it - it would definitely be worth getting legal advice on this.

Yes it would be easy enough for TipTopTable’s mum to correct that by giving her DH a lifetime right to live in the house, if she wanted to.

Thanks for the advice. Sadly my mother is under his control and, much like the late Linda Bellingham, can't believe her husband would deny her children their inheritance. I'm personally not bothered about the money, it's the principal. One of my siblings however could really do with the financial benefit.

Legally a real danger is elderly people marrying. It’s difficult to prevent and marriage automatically revokes any existing will. Relatives will find it almost impossible to challenge post death. Nightmare.

@sammylady37. What a brilliant post.

How do you measure capacity exactly? Are there physical markers? If verbal, what questions are asked? Are there established questionnaires? Is anything written?

How do you deal with masking, which even extremely demented humans use? What allowance do you make for the heavy sedating meds? What allowance do you make for the lowering of IQ to LD levels that dementia also causes?

Where's your proof?

Does it come down to professional experience?

I really want to know out of sheer curiosity after DF had a very typical experience. He was certified dementia-free after 8 hours' professional assessment. An MRI taken the same week showed hefty holes in his brain from alcohol dementia.

DF was very sick indeed. Every other symptom of ARD was presenting with vigour, including the smell, and had been for 25 years.

Dr Google diagnoses it in a few moments.

@Supersimkin2

Briefly, it’s a clinical assessment, there are no physical markers.

First thing to state is that in law, there is a presumption of capacity, until/unless proven otherwise.

In relation to testamentary capacity the person must demonstrate that they understand a)the purpose of making a will, b)the nature and extent of their assets, c)the people who would likely expect to benefit. They need to be free from mood disorder or psychotic belief affecting their capacity (they may have a psychotic belief that doesn’t affect capacity) they need to demonstrate that they can process the information they have, retain it, communicate their wishes etc and demonstrate consistency in that. I always, always, always document verbatim what they’ve told me about every aspect of the above. I get proof of their assets and family composition from their solicitor and I am very wary of info from potential beneficiaries. It often involves assessments on different days, to ensure retention and consistency of views. It can be a complex issue particularly the more complex the estate.

In relation to meds, I take the person as they are in front of me on that day. If they are clearly over-sedated, I won’t make an assessment or judgement of their capacity, but will retry another time.

Thanks, that's fascinating.

Do you think what I think is fair? The people who know the testator best, and, in many cases are also familiar with current medical knowledge of dementia, are the ones who can best identify and measure the changes in that person that are due to their brain disease(s).

They'll see the changes over the decades, they'll mark the mood and personality damage and the loss of meaningful understanding illness brings. They'll have 20 years' assessment time, if not more, and a great deal of medical knowledge gained from study and caring associations.

They're not necessarily medical experts, but they're certainly experts in the person. The rudimentary requirements of the current MCA don't seem to ask for more than that.

Naturally these people are usually the family - as you confirm, the last people anyone listens to. Sad, isn't it?

Just cos someone thinks you might be a beneficiary doesn't mean you're a liar or you've never met your parents.

Not everyone's after the money. Some families just think the truth counts and some even want to protect the dignity and care costs of their demented relations.

I'm pointing this out cos two people I know tried to their ancient relations giving various items away..

One of the old women was properly rich and the big stuff was in trust anyway, so her relations weren't after the money. But her DN who loved her was petrified that her distressingly insane aunt would give away all her own assets - ie care cash - cos the trustees wouldn't keep paying if she did.

The aunt was assessed loads of times on the psych ward but mental capacity remained. DN was increasingly panicky, and said the solicitor refused to listen to the pleas for intervention and had started to be rude.

When I visited the aunt in hosp, she graciously gave me her house after 3 minutes - I called the DN to warn her, which is how I found out about it. Visiting again the next day, the aunt thought I was an angel (delightful) and again handed over various assets, or tried to. I said thanks, offered her a cupcake and slipped out to ring the neice again. No joy with the MCA again. Upshot - aunt died penniless in a council home, rather prematurely.

The other case was an old alcoholic/Alz man who gave the deeds of the boomer London family home to a prostitute and her BF when they visited him for tea one day. Came as a surprise to his wife. She was moved into a hostel by the council aged 85.

I think MCA is overriden by Banks v Goodfellow though (happy to be corrected). Capacity for wills is different to capacity for other things.

Some cases are proper upsetting and look ridiculous but there is always reasoning there.

I take your point but also I’ve seen far too many cases where families are only concerned about their dwindling inheritance prospects and not about the testator. It’s an extremely difficult one to balance in terms of legislation. I should have said in my earlier post that I’m based in ROI and not UK so the MCA is not relevant here, though our legislation is broadly similar.

It’s really very difficult for families to be objective too. One advantage I have I think as an independent assessor is that I have no skin in the game, except to save myself the hassle of being cross-examined in court by a barrister for an aggrieved disinherited family member, hence I do a very thorough assessment that I can be sure I can stand over and robustly defend (obviously that’s the right thing to do anyway, but when there’s any sense that a will may be contested down the line, every t is crossed etc)

Who couldn't agree objectivity is difficult - with family, I guess you have to balance much greater knowledge with the fairly inevitable fact that anyone who has that knowledge is likely to be a close relation.

Thus others immediately assume them to be a potential financial beneficiary - whether they like it or not.

Hugely admiring you for all the trouble you take.

My rant, as you may have gathered, is that financial capacity really isn't all about money. Sometimes keeping one's deranged adult relations alive, let alone solvent, is way more difficult than it should be.

The various senilities last a very, very long time these days - 20 years ain't unusual.

We had a traditional NHS Nightmare trying to get DF any treatment after he'd been certified dementia free cos the docs thought the family were unnecessarily worrying. A fortnight later Dad had yet another stroke getting a diabetes test next to A&E. He spent a few months in same hospital and returned to 24 hour care.

I might also add that the day anyone gets dementia is the day their DC and DGC are disinherited, cos there won't be anything left. With a third of elders diagnosed with it, the real figure infinitely higher, care costs disinheritance is pretty common knowledge.