Can I check if my Mother had her mental capacity checked by Solicitors when she made her will

taylordebs

My Mum remarried and there are three t children from that marriage (my half siblings) , and now that she has passed away the children are saying that I am not in the will which was only made a couple of years ago and she was going into dementia at that time. Do I have a right to ask solicitors if she was assessed as fit to sign a will as her solicitors are saying that they can only tell me that with permission from the 3 children who are the executors? So I'm stuck as no way will they grant that! Thanks

DullGreyGuy

Presumably you have read the Law Society's guidance to its members?

https://www.lawsociety.org.uk/topics/client-care/working-with-clients-who-may-lack-mental-capacity

Do you know who witnessed the will?

tacpot12

If she signed the Will at the solicitors office, it is likely that the witnesses will have been office staff, who may not have had any contact with your mum before being invited to witness her sign the Will. The witnesses have no duty to assess her capacity; that duty rests with the solicitor dealing with her case. I doubt the witnesses will be able to recall anything specific about your mother, unless they knew her personally.

If your mother has left you out of her will, you can talk to a solicitor about the potential to make a claim against your mother's will. You should think carefully about doing so, as it is likely to be expensive and very uncertain as to what you might receive. A better option might be to make up with you half-siblings and see if you can get them to agree that it isn't fair that you have been left out. They can make a Deed of Variation to give you whatever they feel like giving you. (This happened with a friend of mine, who got half of what their sibling had been left.)  

Keep_pedalling

You can certainly challenge the will, but the chances of winning will not be easy. What sort of relationship did you have with her prior to the change in the will?

DullGreyGuy

tacpot12 said:

If she signed the Will at the solicitors office, it is likely that the witnesses will have been office staff, who may not have had any contact with your mum before being invited to witness her sign the Will. The witnesses have no duty to assess her capacity; that duty rests with the solicitor dealing with her case. I doubt the witnesses will be able to recall anything specific about your mother, unless they knew her personally.

If you read the Law Society link they recommend that if a solicitor has any doubt on capacity that they require a doctor act as one of the witnesses.  Similarly if you look at sample cases on contested wills the evidence of the witnesses is often called. 

Flugelhorn

DullGreyGuy said:

tacpot12 said:

If she signed the Will at the solicitors office, it is likely that the witnesses will have been office staff, who may not have had any contact with your mum before being invited to witness her sign the Will. The witnesses have no duty to assess her capacity; that duty rests with the solicitor dealing with her case. I doubt the witnesses will be able to recall anything specific about your mother, unless they knew her personally.

If you read the Law Society link they recommend that if a solicitor has any doubt on capacity that they require a doctor act as one of the witnesses.  Similarly if you look at sample cases on contested wills the evidence of the witnesses is often called. 

the witnesses are purely witnessing the signature and not the individuals understanding of the process or what they have written in the will - a doctor may be asked to do an assessment of mental capacity for this purpose - this is usually doctors who have specific experience in that area

uknick

Keep_pedalling said:

You can certainly challenge the will, but the chances of winning will be easy. What sort of relationship did you have with her prior to the change in the will?

I assume you meant "not be easy".

uknick

taylordebs said:

My Mum remarried and there are three t children from that marriage (my half siblings) , and now that she has passed away the children are saying that I am not in the will which was only made a couple of years ago and she was going into dementia at that time. Do I have a right to ask solicitors if she was assessed as fit to sign a will as her solicitors are saying that they can only tell me that with permission from the 3 children who are the executors? So I'm stuck as no way will they grant that! Thanks

Google the "Golden Rule" before you do anything else.

You can start here,

The Golden Rule - Magdalen Chambers

But, as said, it will be very difficult to win a challenge unless you have some pretty good evidence of her mental capacity at the time of signing the will.  And I do mean when she actually signs it, not just before or just after.  And if you do challenge, have deep pockets as you can't assume you can recover your costs if you lose.

I am in a similar position and did engage a solicitor who wanted to have at least £1,000 lodged with them at all times, i.e. if I spent £800 of the original £1,000 I paid as a "retainer", they wanted me to pay another £800 to maintain the balance. 

Clueless56

I agree with those who say the staff witnesses will not remember detail.  I did this many times and only remember one because the circumstances were upsetting.  I checked at the time: not illegal, just upsetting.

Keep_pedalling

uknick said:

Keep_pedalling said:

You can certainly challenge the will, but the chances of winning will be easy. What sort of relationship did you have with her prior to the change in the will?

I assume you meant "not be easy".

I did indeed, now corrected.

SiliconChip

taylordebs said:

...her solicitors are saying that they can only tell me that with permission from the 3 children who are the executors? So I'm stuck as no way will they grant that!

Have you actually asked? If not then that would seem to be the sensible first step, they might say yes!