Setting aside a will on the ground of a lack of capacity

We were recently instructed by the children of the deceased who had been suffering from cancer and fluctuating dementia when she made her will. The deceased had days where she was completely lucid, but on other occasions forgot where she lived and the names of her relatives.

 The deceased’s will at the date of her death left everything to her best friend and failed to make any provision at all for our clients, who in an earlier will had been the sole beneficiaries of her estate. 

 

We advised our clients that in order for their mother to have capacity to make the will subject to scrutiny she needed to have (1) understood the nature of making the will and its effects; (2) understood the extent of the property of which she was disposing; and (3) been able to comprehend and appreciate the claims to which she ought to give effect and was not affected by any disorder of the mind that influenced her will in disposing of her property.

We subsequently obtained and reviewed the deceased’s medical records and her personal diaries in order to seek to  demonstrate that she did not have capacity when making the will. We also obtained medical evidence from a testamentary capacity expert to further support our clients’ claim.

We were successful in showing that the deceased did not have the requisite capacity to understand what her estate consisted of and nor did she understand the implications of leaving all of her property to her best friend as opposed to our clients. Consequently, the will was overturned and the deceased’s estate passed to our clients (in equal shares) in its entirety.

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