01 March 2023

The death of a family member can be distressing, particularly if the date or terms of their Will come as a surprise and appear contrary to your understanding of their wishes while they were alive. Sadly, this is a situation we see all too regularly, particularly following the Covid-19 pandemic where many elderly people found themselves isolated and alone, with perhaps only one family member or one side of the family able to visit them due to lockdown travel and visitation restrictions.

In some cases, the testator’s wishes may simply have changed prior to their death and not been communicated to all beneficiaries but what if you have genuine concerns about the circumstances in which a Will was made? Where do you go next? There are two steps we would recommend as a starting point to gain an insight into the creation of the will and the mental health of the testator at that time.

1. Larke v Nugus Request

Was there a solicitor involved in the preparation of the Will? If so, a Larke v Nugus request should be considered. This is a request which can be made to the will drafter to ascertain the circumstances surrounding the preparation of the Will. If a full response is received, this should give a good insight into the creation of the will and might alleviate suspicions.

In a Larke v Nugus request, a full copy of the will drafter’s file should be requested and detailed questions raised, for example:

  • What meetings took place between the testator and the will drafter? Were those meetings in person? Was anyone else present? Are there attendance notes?
  • If there was a previous will, how much did the will change and how much did the testator appear to understand those changes?
  • What were the circumstances in which the Will was executed? Who else was there?

It is also worth bearing in mind when considering a Larke v Nugus response that, whilst not a strict legal requirement, the case of Kenward v Adams [1975] held the ‘Golden Rule’ of good practice for solicitors preparing wills to be that:

In the case of an aged testator or a testator who has suffered a serious illness…: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself with the capacity and understanding of the testator, and records and preserves his explanation and finding”.

This case has stood the test of time from a ‘good practice’ perspective and it remains the position that it should, where possible, be observed by solicitors as it has the benefit of making it more difficult for the Will to be challenged in due course on grounds of lack of testamentary capacity. That said, it is often seen as problematic to follow in practice as medical professionals can be unwilling to get involved or lack knowledge of the common law test for establishing testamentary capacity. Given also the potential for delays and cost consequences, absent any obvious signs hinting at capacity issues or radical changes to an existing Will, solicitors often may not suggest a capacity assessment based simply on the testator’s age.

2. Obtain Medical Records

If you have concerns about the health and mental capacity of the testator at the time their last will was executed, you may wish to request the testator’s medical records. When a person dies in England, their GP health records are returned to Primary Care Support England (PCSE) for storage. They are generally retained for 10 years, then destroyed. For hospital records, the record holder is the records manager at the hospital which the deceased attended.

Whilst the obligation on medical professionals to protect a patient’s confidentiality continues beyond death, the Access to Health Records Act 1990 allows disclosure of medical records to two categories of individuals:

1. The Personal Representative (i.e. Executor or Administrator) of an Estate; and

2. Anyone who may have a claim resulting from a person’s death. This is accepted to encompass those with a financial claim (for example, those concerned about the validity of a will). Determining who falls within this category of individuals is not always straightforward but the test is not stringent. The decision as to whether a claim actually exists lies with the record holder. Record holders may also choose to withhold elements of a deceased’s medical record if it would identify a third person who has not given their consent to the disclosure (for example, information about another family member which was relevant to the deceased’s own medical position).

In both circumstances, the person requesting the records will need to provide evidence that they fit within the relevant category and are entitled to access to the records. Once obtained, these records should give further insight into the health of the testator when the Will was made and whether there may have been any issues with mental capacity at the point when the Will was entered into.

If you would like advice on the points addressed in this article, please contact Kevin Kennedy or Justin Briggs from our Dispute Resolution team.

Key contact

Kevin Kennedy

Kevin Kennedy Partner

  • Estates and Land
  • Private Wealth
  • Agricultural Disputes

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