How to minimise the risk of your Will being challenged

It is noticeable that the number of contested Probate claims have increased over recent years.  If a Will is successfully challenged, the estate passes under the terms of the previous valid Will or the rules of intestacy may apply.

One of the frequent grounds on which Wills are challenged is the lack of testamentary capacity of the testator.

We seek to draft Wills that are robust against challenge.  Your Tyndallwoods Solicitor will make an attendance note confirming that he has no reason to doubt the testamentary capacity of the client.

Our file notes which are permanently available confirm that the Testator understands:

• He is writing an important legal document by way of a Will and its effect.
• The extent of his assets.
• The ‘moral claims’ he ought to consider namely those who might reasonably expect to benefit, even if ultimately the Testator decides not to leave anything to them.

If there is reason to doubt the testamentary capacity of the client the solicitor will conduct a capacity checklist and possibly give appropriate advice in relation to the signing of the Will.

In the case of Banks -v- Goodfellow Lord Templeman highlighted the ‘golden rule’ in relation to assessment of testamentary capacity, that if there is any cause of concern the signature should be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his examinations and findings.

For more information, please contact me.

  Ian Buchanan
  Director & Solicitor

  Email Ian through the Contact Us page