Can you challenge a will prior to death?

Lily1

Have found out my mums will has been changed 18 months ago, my step father also changed his at the same time. This will substantially affect the beneficiaries.
I say the will has been changed rather than changed because my mum was suffering advanced dementia at the time, she is now in a nursing home, only able to be fed and totally relies on the staff for all her needs. That she was able to sign this baffles myself and my siblings as she did not recognise us or could not function independently at all.
I know we can challenge this after her death but wondered if it would be cheaper to instigate this now. We have been devastated by our step fathers actions but fully appreciate he can do as he pleases but surely there must be something we can do as mum had already been diagnosed and was clearly mentally incapacitated.

NAR

What you can do is gather relevant information regarding her mental status and capabilities to change her will. That way you will be well prepared to contest the will. Was this will change done using a solicitor?

PasturesNew

Solicotrs "judge" the mental capacity of the person .... certainly for PoA. The thing is, there's a period before somebody is actually deemed unable to cope, when they can appear to function to anybody who isn't in the know. To a stranger they seem to answer questions, know what's going on - in reality they're just covering up their incapacity giving the answers they think people want to hear.... and they can get by doing this for some time. Only family living with them day by day and watching for inconsistencies would be able to spot the true from the rubbish/nuts/untrue/fantasy.

It's possible, therefore, that at the time the will was made, they could appear savvy.... but not be.

They rely on/lean on those closest... fearful of what they know's happening to them, they defer all decisions to somebody else ... and if that person is in a position to manipulate them then it's a doddle.

Errata

A will has no legal status until the willmaker dies, so no, you can't challenge it before that point.
What you could do is obtain evidence about your mother's capability to understand what she was doing when she made the will If this predates the date of the will, which you seem to know and you also know the contents of the will, you may have grounds for a challenge.
Additionally, if you feel your mother has been forced to make a will she couldn't understand, speak to Action on Elder Abuse for guidance.

Lily1

Thanks everyone, it looks like we will have to wait for my mums death. The solicitor I feel was happy to take the fee but certainly was either negligent or stupid. One of the tests my mum had to do when assessed by the psychiatrist was to write on a straight line, she was unable to do this. Maybe she signed with an x.

dzug1

Lily1 wrote: »

. One of the tests my mum had to do when assessed by the psychiatrist was to write on a straight line, she was unable to do this. Maybe she signed with an x.

Doesn't (of itself) mean either that she lacked capacity or that the will was invalid

I fear that eventually you are going to be in for a difficult time - the evidence you are going to be able to gather is not going to be conclusive either way. Lovely money for lawyers.

Lily1

I am sure you are right. The legal profession always come out on top. If my mum survives for a decent length of time then the money may well be swallowed up by the authorities anyway. Think we are just a bit disappointed with my step father as he has been in our lives since my dad died when I was eleven, forty three years ago. Never mind, time will tell.

getmore4less

Do you have the previous will or a copy.

Mojisola

Lily1 wrote: »

Have found out my mums will has been changed 18 months ago, my step father also changed his at the same time. This will substantially affect the beneficiaries.
I say the will has been changed rather than changed because my mum was suffering advanced dementia at the time, she is now in a nursing home, only able to be fed and totally relies on the staff for all her needs. That she was able to sign this baffles myself and my siblings as she did not recognise us or could not function independently at all.

mum had already been diagnosed and was clearly mentally incapacitated.

I would pursue this now. It's going to be hard enough grieving when your Mum goes without starting a legal challenge then.

If she didn't know her own children at the time, it's highly unlikely that she was competent to make a will.

Lily1

No copy of the original will, although saw it at the time. Very difficult as anything we do now will probably have us written out of his will as well. I know he feels very bitter that he was left in this position regarding mums health. Not sure what to do now, can't just ignore it and carry on as we know that mum would never have included two men in her will that she had never met.

getmore4less

Was the new will witnessed properly.

If there is no old will or a copy that can be referenced that could complicate since it could well end up intestate.

I think you need to get some seriously good legal advice.