Put simply, diminished mental capacity in the setting aside of a Will is where a party believes that, at the time of making the Will, the testator lacked the mental capacity to properly comprehend the consequences of his or her decisions in relation to the distribution of the estate.
In the 1800s, case law established that a person must be of "sound mind, memory and understanding" when drawing up a Will. However, this can be a complex ground for contesting a Will and swift legal advice should be sought in the event of applying it to your situation. Oratto member inheritance dispute solicitors have the skill and experience you require to be able to advise you right from the start. All of the member profiles featured on this page will have proven experience in this area of inheritance disputes and will be able to advise you swiftly and accurately about the merit of your claim.
Evidence is key
If the Will appears accurate and in order there is a presumption of capacity. This means that those who seek to rely on a finding of diminished mental capacity must prove beyond doubt that this is the case.
If you wish to contest a Will then it's imperative to approach lawyers for inheritance disputes straight away. There are three main actions that you can then take:
- if a Grant of Probate has not been issued then you may enter a caveat with the Probate Registry to prevent this – and therefore prevent the distribution of the estate while your claim is investigated
- you can try to gain access to the testator's medical records to see if any light can be shed on the testator's mental state
- talk to the family and friends of the testator, and the solicitor who drew up the Will, to gain an understanding of the circumstances in which it was drawn up. It is sometimes possible to challenge a Will purely on the basis of the testimony of others
For a Will to be valid, some grounds must be satisfied:
- the testator must understand the act of making a Will and the effect it may have. The law does not demand that they are of a perfectly balanced mind; decisions made through spite or sheer frivolity do not invalidate a Will
- the testator must also understand the extent of the estate to be disposed of. They don't need to have a detailed understanding of their finances, just an appreciation of the value of the entire estate
- if there is a glaring omission when it comes to considering whether others should be given a part of the estate, or a claim against it has been missed completely, then this may indicate diminished mental capacity
Gain clarity with Oratto member solicitors
Oratto can put you in contact with a selection of our member lawyers who are experts in contesting a Will. Any one of these practitioners will be able to discuss your situation with you in-depth and then advise on the appropriate course of action.
If it is accepted that the testator did have diminished mental capacity, and there is no earlier Will, then the rules of intestacy will be applied to the estate. Again, Oratto member lawyers who are specifically trained in this area will be able to explain the implications of intestacy to you.
Contact Oratto today to choose a member lawyer or use our Oratto Match facility so that we may suggest the most appropriate member for your particular case.