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

msb1234

• First of all, do you have a medical diagnosis that she had dementia at the time her wills was written? Because if you don’t, I doubt you have a leg to stand on contesting the will. It may well be that your mother thought something like that you’d benefit from your father’s will so she left her estate to her younger children? Could that be a possibility?

user1977

If the solicitor met her then I wouldn't expect they would have proceeded if they had doubts about her capacity (at any point during the process - generally they'd be in contact with the client both when taking initial instructions and when it comes to signing the Will). Beyond that, they don't need to have checked her capacity - so the onus would be on you to prove that in fact she didn't have capacity to make a Will.

And bear in mind these things aren't binary - you can e.g. forget what day it is today, but still be certain about who you want to inherit your estate.

Spendless

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

Leaving aside the question of whether your Mum had dementia or not. Have you actually seen a copy of the will? 

diystarter7

OP
In order to support your quest, how did you get on with your mum?
How often did you see/call hers and vice-versa?

Did the will inc any other siblings you have or family from your dad's side?

Dis your mum ever mention the will to you and are the half-siblings a lot more financially vulnerable than you and you are relatively comfortable financially when compared with them?

What has stepdad said I'm assuming you have spoken with him

TBH, I'm very much anti-will turning but if there is a case and evidence of manipulation then it needs to be addressed.

I wish you luck in getting a clear picture re your mother's state of mind when the will was written and the reason/s why you was left out.

No one has mentioned this but it is important PS: Almost all medical conditions vary person by person and there are early stages of dementia where ones ability has been hardly impacted. The person may not be a 100% of they were the year/s before but are capable of making an informed decision. There, it will be very difficult to prove you mother lacked capacity unless there is a record of her health stating that for around that time. With dementia, even a bit later people have good and bad days but early dementia from the people I've seen via work years ago were able to go out alone, stay at home alone etc,etc

Your choice and good luck and I hope you get the info you seek to rest your concerns one way or another

elsien

A dementia diagnosis does not automatically mean someone lacks capacity around all decisions and the presumption is that someone has capacity to make a specific decision unless demonstrated otherwise.
People with dementia can and do make perfectly valid wills, power-of-attorney etcetera, particularly  in the early stages.
I would not expect a solicitor to go ahead with making a will if they had any doubts as to capacity but these are the factors they would consider. 

https://www.clarkewillmott.com/insights/testamentary-capacity-explained/

It may also depend in part as to whether your mother disclosed her dementia diagnosis ( if she even had a diagnosis at that point) as to how much they may have checked her understanding. 

diystarter7

Spendless said:

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

Leaving aside the question of whether your Mum had dementia or not. Have you actually seen a copy of the will? 

Thank you a very important point that had not been picked up earlier as it could just be a wind-up by the half sibs

elsien

There is no automatic right to see the will at this stage  as it’s not a matter of public record till it’s gone through probate. 

And it’s extremely unlikely that the siblings are winding anyone up, given that a solicitor is involved. What a strange statement to make.

JJWSJS8700

uknick said:

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. 

Are you progressing in your dispute?

JJWSJS8700

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

Have you obtained a copy of the death certificate to see the cause of death, crucial point.

Has your Mother left any valuable assets?

Unless you can afford or find a CFA solicitor, wait for probate to be granted, you can view the will and then dispute from there.

Grumpy_chap

Oh dear, this thread almost seems to be the other side of this one:
https://forums.moneysavingexpert.com/discussion/6400391/change-to-will-to-remove-siblings-of-2nd-husband/p1