The National Will Register’s Certainty Will Search has been successfully used in obtaining an earlier will as basis for evidence in a will challenge based on lack of testamentary capacity.
Will disputes continue to rise, with one of the main reasons being the rise in people with a lack of capacity to carry out their affairs, known as testamentary capacity. Testamentary capacity is one of the cornerstones of eligibility in making a valid will. Without it, the testator can be at risk of being taken advantage of and be coerced into making a will that goes against their wishes and to the detriment of loved ones.
In this example, Debbie (not their actual name) instructed Wilkin Chapman to dispute her late mother’s will. While Debbie lives abroad, she always maintained a close relationship with her mother. As such, she was made aware by her mother that she had written a will and made provisions for her and her brother within it.
As the years passed, Debbie’s mother became increasing confused and was suspected of having dementia. Contact between Debbie and her mother had lessened due to the difficulties with distance and her worsening condition but did travel when her mother had become terminally ill.
It was then that she discovered that her brother had been awarded sole power of attorney. Additionally, he’d instructed a solicitor to make a new will that had disinherited Debbie from the will, with her share going to her brother.
In situations with multiple beneficiaries, varying levels of contact, and where a sole sibling is given power of attorney, it is unfortunately not uncommon for a situation like the one outlined above to arise. Finding a previously written will, preferably one when the testator has capacity, with instructions that may be more common or fair, often help provide context to the situation and outline a potentially big change of heart, at least on paper, from one will to another.
Debbie did exactly that, searching for the will she knew of through a Certainty Will Search with The National Will Register. The search brought up two wills, the current, disputed will and the original one Debbie knew of, which was held by Wilkin Chapman.
Armed with the original will found by The National Will Register, the validity of the new will is now being challenged.
Certainty Will Searches serve many purposes for different stakeholders within the wills and probate industry. For people like Debbie, it forms part of the information needed to advance a successful will challenge; for others it might be to locate a will at all, or to make sure that one that has been found for a loved one is the most up to date will. For solicitors, deputies and attorneys, it might be to understand wishes better in creating a statutory will, or to ensure they are working with the correct will.
“In contested probate cases like Debbie’s, it is fundamental to establish whether a testator had the necessary mental capacity when they prepared their will in addition to understanding whether the disappointed beneficiary benefited under a previous will. If the potential applicant does not benefit under an earlier will (or the rules of intestacy), they must carefully weigh up whether they wish to proceed in incurring significant legal costs in proceeding with a challenge to the will.” said Katherine Marshall at Wilkin Chapman. “It is important to remember that a will cannot be challenged simply because of a perceived unfairness or inequality. Testamentary freedom remains paramount and the Court will seek to uphold a Testator’s wishes where it can. It is therefore fundamental to obtain string evidence in pursuing a will challenge. In Debbie’s case, finding the earlier will with us allowed us to examine her case for a dispute and we are confident of being able to challenge the most recent will.”