Making a will is the best way of ensuring that after your death your possessions are left to the people you want to get them. In England and Wales, a testator – the legal term for the person making the will – is usually advised by a lawyer when making their will. The lawyer is obliged to take a few factors into consideration when making wills.
o The lawyer must be sure that the testator is aware and understands that they are making a will, and also understands what the terms of the will itself are.
o The testator must also understand what possessions and assets they are leaving in their will, and the value or the assets to the people who are benefiting from the will.
o The testator must finally know who the people are who will inherit in their will, and the lawyer must make sure that they are not being influenced to include or exclude people from their will.
If it is felt that a testator lacked mental capacity to make a will, it can be challenged in court. Mental capacity means that the testator fully understands the process of making a will and the contents of their will. If the will contains terms which may lead a court to think there was a lack of capacity, or if the testator was suffering from dementia, Alzheimer’s disease or other mental impairments, the challenge may well be successful. Challenges can also arise when there are lots of revisions made to wills containing lots of differences between each version, especially when the most recent copy was made just before the testator’s death.
If there are any doubts at all about a testator’s mental capacity, a good lawyer will follow three “Golden Rules” when drawing up their will.
1. They will ask a medical professional to be present and witness the signing of the will.
2. They will discuss with the testator their reasons for changing a will and the implications of those changes, with the aim of working out whether they have the mental capacity to make any alterations.
3. They will make sure any people who are perhaps influencing the testator are not there when the will is signed, and also exclude anyone who is named in the will as a beneficiary.
If these Golden Rules are followed when a will is prepared, the chances of successfully contesting the will in a challenge through the courts at a later date are sick of reduced. Despite the best efforts of lawyers to ensure wills are drawn up properly and legally, this does not stop disappointed family members or other people who felt they should have inherited going to court to try to get what they feel they are owed.
One last word of warning. If you’re thinking of contesting a will, don’t rush into it. Whilst the prospect of getting what you feel you deserve, and gaining a cash lump sum or some other type of property is always attractive, contesting a will can cause irreparable damage to your relationship with friends and family. And that’s probably the last thing that the loved one you just lost would have wanted.