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A recent case on contesting the validity of a Will for lack of mental capacity

by Jonathan Starck — Posted on 19 September, 2019

How we helped a client contest the validity of a will as a result of a lack of mental capacity


Our previous case study on “Contested Wills and Probate” details various grounds for contesting a will and probate. One of the most common grounds for contesting a will is due to a lack of mental capacity. Here we explore this in more detail with a recent case study.


What were the main facts of the case?

Starck Uberoi were approached by a recently widowed client who, upon her husband’s death, discovered that she may be homeless, as she was left out of his Will. It was later discovered that the deceased’s former partner had encouraged his agreement to the latest “Will” during his last hours, while also persuading his Mother and Sister to support her amendments to the Will as well as acting as   witnesses to the signing of the Will.


There were three main points of challenge in this case that had to be considered:


  1. Mental Capacity Act 2005

Our client was disputing the validity of the Will on the basis that her husband did not have the mental capacity required under the Mental Capacity Act 2005, the aim of this act is to protect those who are vulnerable so that someone may act on your behalf to make decisions should you not have the mental capacity to do so yourself. Since her late husband had suffered terminal lung cancer this had put him in a vulnerable state of delirium only a few days before his passing, therefore the latest Will appeared suspect. Upon consulting with barrister, Roger Bartlett, Starck Uberoi took steps to acquire proof of insufficient mental capacity by consulting with the deceased’s GP, hospital doctors and an expert in psychiatry. We managed to procure a report by Robin Jacoby, an Oxford Psychiatry Professor who submitted that the deceased’s health had likely been too weakened and delirious by his medication to give sound agreement to the Will. This, along with the documents from his doctors meant that Starck Uberoi could enter mediation with our client’s claims.


  1. Wills Act 1837

The deceased’s former partner also failed to present a statement of his presence or his direction to his sister during the signing of the Will, as required by the Wills Act 1837 when the deceased is not the signatory of their Will. This suggested that the former partner had been using the deceased’s will as a way to advantage herself through disadvantaging our client.


  1. The inheritance and miscellaneous provisions Act, 1975

Our client also claimed on the validity of the Will that the hostility towards our client from the deceased’s former partner was concerning, and this prompted a removal of her as executer of the “alleged” Will. The Will had left only very little overseas property which would not have left our client with enough to continue her standard of living in the UK. Also, the proceeds of the property owned by the client’s husband had been left to his son, godson and former partner, excluding our client. Read more about the ‘Inheritance (Provision for Family and Dependants) Act’ 1975 on our previous ‘Contested Wills and Probate’ case study.

Our case was not just a standard wills and probate case as the former partner of the deceased had also contacted the investment company managing the deceased’s pension, causing our client further issues in recovering her husband’s pension. Our client faced conflicts with HMRC due to inheritance tax and taxation penalties on both property and real property she had not inherited in the Will in question. We managed to resolve all these issues and was able to remove all taxation against our client.


The outcome through mediation

The outcome was that the other side realised wrongdoing following the three points we have listed above, in particular, Dr Jacoby’s report which played a role in our client recovering the legal costs as well as probate and all of her late husband’s assets. As our client was the legal spouse of the deceased and had witnesses as to their intimate relationship, we were able to remove all taxation penalties our client had been sent, and she received her late husband’s pension. The outcome of this case was successful through mediation. For more information on a successful mediation regarding family property disputes see our blog on “How mediation can act as a solution in a family property dispute”.


How Starck Uberoi can help

If you would like any further information regarding Contested Wills and Mental capacity or any other aspects of the administration process see our contested wills and probate page. Our experienced London based Wills and Probate team will deal with your matter efficiently. For more information, please visit our Wills and Probate page, or to book an appointment please call 020 8840 6640. We are based in Ealing; our West London Ealing office is located 10 minutes from Ealing Broadway station. For an appointment at our London Belgravia office a few minutes from Victoria Station call 020 7824 5118.


Further Reading

About Jonathan Starck

A Solicitor-Advocate, Jonathan heads the Litigation Department at the firm. He has extensive experience of representing clients at all levels from the Magistrates court to the High Court including litigation and applications for Judicial Review of ministerial decisions as well as representing appellants at the Court of Appeal. His specialist areas of practice include complex cases; litigation strategy and negotiation and he retains a healthy passion to remain client focused at all times.