If you are considering contesting the validity of a will, you will need evidence to support your claim. The most common forms of evidence used are medical records, the will file from the solicitor who drafted the will, and the testimony of those who witnessed the will signature.
Medical records
The medical records of the deceased will show whether they suffered from any diagnosed conditions that may have affected their capacity at the time the will was made. If you are looking to contest the will on the grounds of lack of capacity, the medical records will be crucial.
Medical records would show diagnosed conditions such as dementia, Alzheimer's, or other conditions that could have potentially affected the deceased mental capacity. The medical records may also show any medication that may have affected mental clarity around the time the will was made. GP notes about possible confusion or memory problems would also be relevant.
You would need to contact the deceased's GP to access their medical records. You must be able to show your legal right to access the records, typically as a beneficiary or someone with a legitimate interest or claim in the estate.
Will file
The next important piece of evidence is a copy of the will file, which will be available if the deceased drafted their will using a solicitor.
You can request information relating to the circumstances surrounding the preparation of the will via what is known as a Larke v Nugus request.
A Larke v Nugus request enables the solicitor who drafted the will to provide information about how the will was prepared, for example, who gave instructions and whether proper procedures were followed. You may also request the notes from meetings and phone calls, any draft versions of the will, and any concerns the solicitor noted about capacity or undue influence.
This evidence can be helpful if you are looking to contest the will on the grounds of a lack of knowledge and approval or undue influence.
Witness testimony
If a solicitor did not prepare the will, you will likely wish to obtain evidence from the witnesses to the will.
The recollection of the witnesses could be vital in showing that the correct formalities for executing the will in accordance with the Wills Act 1837 were followed.
By way of example, witnesses would be able to confirm that the deceased signed their will in their presence, whether the deceased understood what they were signing, and whether it appeared that anyone was pressuring or influencing the deceased.
It's important to ask witnesses whether the deceased seemed confused or uncertain. It's also essential to ascertain whether anyone else was present, whether the deceased read the will before they signed, and whether there were any unusual circumstances.
Other sources of evidence
There may be other evidence that would support your case; for example, handwriting on the will, text messages and emails (which could show confusion or coercion) and the use of bank accounts could evidence a position of power or influence that one may have had over the deceased.
Third-party evidence can also be helpful, particularly from carers who may have witnessed changes in mental capacity, family members and friends who observed unusual or out-of-character behaviour, or healthcare professionals who treated the deceased.
How much evidence is needed
The amount of evidence you need depends on several factors, including the strength of your legal grounds, the value of the estate, whether other people will contest the challenge, and how complex the family relationships are.
You must have enough evidence to demonstrate a real prospect of success before the courts will allow your challenge to proceed.
Gathering evidence
To gather evidence, start by requesting medical records from the deceased's GP, contacting the solicitor who prepared the will (if there was one), and speaking to witnesses.
Some evidence requires legal assistance to obtain. Solicitors can make formal Larke v Nugus requests, access court records and official documents, interview witnesses properly, and work with medical experts on capacity assessments.
Time limits
It is important to act quickly in claims to challenge the validity of wills. The personal representative of the estate ought to take prompt steps to administer the estate and distribute funds to beneficiaries and it is therefore essential to obtain advice at the earliest opportunity.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
