Testamentary Capacity & Wills Disputes - A Live Guide for Contentious Probate Professionals

Introduction

Disputes about wills very frequently prompt individuals to seek expert legal advice on the merits of their case.

Very often it is the first time the client has met with the realities of litigation, and very often the financial stakes are life-changing for the parties.

Although only a small minority of cases reach trial, there is a steady stream of reported cases which practitioners need to keep on top of to appreciate what makes a strong or weak case.

The recent appeal in Re Clitheroe illustrates the need for both a clear understanding of the legal principles and a careful and realistic assessment of the evidence, in addition to being a cautionary tale of the financial risks.

Despite the likelihood and serious consequences of a potential dispute often being foreseeable at the time the will is made, a surprising number of wills disposing of substantial assets are executed in circumstances that leave room for argument about testamentary capacity - even where professionals are involved.

Difficulties can arise where the testator’s capacity was deteriorating rapidly around the time the will was executed.

This new virtual classroom seminar is aimed at an intermediate level, focusing primarily on the relatively recent case law showing how the courts have been interpreting the sometimes-elusive concept of testamentary capacity and the approaches taken to weighing evidence for and against.

What You Will Learn

This live and interactive session will cover the following:

• A reminder of the legal principles and the continuing debate about the relationship between the longstanding Banks v Goodfellow test and the principles enacted in the Mental Capacity Act 2005
• A discussion of the caselaw about what exactly the testator is required to understand, and how well they are required to understand it
• The special case of a deterioration in capacity after instructions for a will are taken: the rule in Parker v Felgate
• The extent to which doubts about capacity make a difference to challenges based on undue influence and a lack of knowledge and approval
• The assessment of the weight to be attached to evidence given by a professional who drew up a disputed will
• The use and limitations of expert evidence after the testator’s death, how it can be undermined, and the question of when the best time is to seek it
• Gathering evidence from lay witnesses once a dispute has arisen or seems likely
• Investigating whether other evidence with a real chance of affecting the outcome is available

Recording of live sessions: Soon after the Learn Live session has taken place you will be able to go back and access the recording - should you wish to revisit the material discussed.