Challenging a Will: What Evidence Matters Most?

If you are thinking about challenging a Will because you believe the person who made it did not understand what they were doing, one question is often very important:

What evidence best shows what they understood when the Will was made?

The answer will depend on the facts of each case, but some types of evidence are usually more helpful than others.

Evidence from the person who prepared the Will

The person who prepared the Will is often an important witness.

If a solicitor met with the person making the Will, discussed their wishes, checked their understanding and kept detailed notes, that evidence can be very persuasive.

This is because they were present at the time the Will was made and can explain what they saw and heard.

When can a Will be challenged?

A Will may be open to challenge if there is evidence that the person making it:

• did not understand what a Will was

• did not understand the effect of the decisions they were making

• was suffering from memory problems or confusion that affected their decision-making

• was unable to understand important information about their estate or family

Each case is different and will depend on the available evidence.

Why timing matters

Evidence from around the time the Will was made is usually the most useful.

This can include:

• meetings with the solicitor

• attendance notes

• letters and correspondence

• medical assessments carried out at the time

• medical records from the period when the Will was signed

Evidence created much later may still be helpful, but it can be more difficult to know exactly what the person's understanding was when the Will was made.

What about medical evidence?

Medical evidence can be very important in a Will dispute.

However, not all medical evidence carries the same weight.

GP records

GP records can help build a picture of a person's health and any memory or cognitive problems they were experiencing.

However, GP records are not usually created for the purpose of assessing whether someone had the mental capacity to make a Will.

For that reason, they do not always provide a clear answer.

Specialist medical evidence

Reports from specialists can sometimes be particularly helpful.

A specialist may be able to review the available evidence and give an opinion about whether the person understood the decisions they were making.

The value of any expert opinion will depend on the quality of the information available to them.

When assessing whether a Will is valid, the central issue is what evidence best demonstrates the testator’s understanding at the time the Will was made. In many cases, evidence from the person who prepared the Will will carry significant weight, particularly where detailed records of the discussions and decision-making process have been kept. Evidence created contemporaneously is often far more persuasive than material produced later, as it provides a direct insight into the testator’s state of mind at the relevant time. Medical evidence can also play an important role, especially where it clearly addresses the individual’s ability to understand and make decisions, but its value will always depend on how closely it reflects the position at the time the Will was executed.

How Forbes Solicitors Can Help

Our specialist Contentious Probate team advises clients on a wide range of inheritance disputes, including claims under the Inheritance Act 1975, adult child claims, and cases involving disabled dependants or vulnerable beneficiaries.

If you believe you have been unfairly excluded from a Will, we can help you assess your options and the strength of any potential claim. For more information or to arrange a consultation call 0800 689 3607 to speak with a member of our team.