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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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How to challenge a will - lack of testamentary capacity or lack of want of knowledge and approval?
13 September 2018

As experienced, specialist probate dispute lawyers we are familiar with all contentious probate disputes and understand how confusing it can be when trying to challenge a will. If you do find yourself in the position of needing to challenge a will we've pulled together the most frequently asked questions...

How should the will be challenged and what should it be challenged on?

Two recent probate disputes demonstrate the importance of challenging a will based on both a lack of testamentary capacity and lack of want of knowledge and approval. Both were cases where claims were brought seeking to challenge the wills based upon lack of testamentary capacity. However, both claims failed in this respect but succeeded for lack of want of knowledge and approval.

Disputing a will based upon a lack of want of knowledge and approval

In Hawes V Burgess [2013], the probate dispute claim that the testator lacked testamentary capacity was initially successful. However, on appeal, Lord Justice Mummery stated that the court should be careful about accepting the evidence of a medical expert given after the event, where that expert had not met or examined the testator. He went on to say that it had been a “very strong thing” for the judge (in the original trial) to find that a testator did not have capacity to make the will when it had been prepared by an experienced and independent solicitor following a meeting with her where that solicitor had read the will back to her and considered (and recorded in an attendance note) that she was capable of understanding the will. He said that a will so drafted by a solicitor “should only be set aside on the clearest evidence of lack of mental capacity”.

The court of appeal concluded that there was insufficient evidence that the testator lacked testamentary capacity. However, it still found the will invalid on the ground of lack of want of knowledge and approval.
In reaching its decision, the court of appeal considered all the circumstances including firstly, the fact that the testator had been close to the son that was excluded from the disputed will, secondly the fact that the daughter had played an instrumental part in the preparation and execution of the disputed will and thirdly, that the disputed will had been made at a time when the two siblings had fallen out with each other. The court also highlighted the fact that the solicitor had not arranged to send the testator a draft of the disputed will to check before attending at the office for execution of the will.

Disputing a will made in suspicious circumstances

In Topciapski V Topciapski [2013] an expert report from a medical practitioner had been obtained in relation to the alleged lack of testamentary capacity. Although the expert did not state that the testator lacked capacity, the court held that his capacity was impaired on the basis of marked “generalised atrophic and ischaemic changes” which had adversely impacted on the testator’s ability to know and approve of the contents of the disputed will.

The disputed will represented a departure from previous wills executed by the testator. There appeared to be no rational reason for the son to have been excluded from the disputed will. Due to the suspicious circumstances of the disputed will the court declared the will invalid on the ground of lack of want and knowledge and approval.

If you wish to challenge a will and are seeking advice on whether you can make a probate dispute claim then please get in touch for an initial, no obligation discussion.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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