Disputes & Testamentary Capacity - Key Issues for Contentious Probate Professionals
A steady stream of probate cases continues to come before the High Court, with recent cases such as Re Clitheroe and Hughes v Pritchard & Ors showing both that there is still debate about what having testamentary capacity involves and that a careful examination of all the evidence is essential.
It may be anticipated that the circumstances of the COVID-19 pandemic will lead to particularly difficult cases where elderly testators had little contact with anyone else for an extended period, meaning that evidence of their mental state is limited.
The difficulty in weighing up the merits of a probate dispute is frequently matched by the financial stakes, which can often be life-changing for the parties.
Even if the eventual grant of probate ultimately reflects the testator’s true last wishes, the longer a probate dispute continues the more the beneficiaries’ inheritance will be delayed, the more the value of the estate will be diminished by irrevocable costs, and the more stress the parties will suffer.
These factors also increase the pressure to enter a compromise that does not reflect the likelihood of the will challenge succeeding at trial.
It is therefore vitally important for all parties to be able to assess the merits of the case realistically at the earliest possible stage. This requires a focus on the narrow legal issues which would decide the outcome at trial and on the facts and evidence that are likely to carry weight with a judge.
This newly updated webinar will discuss those issues by reference to the case law, including recent cases especially.
What You Will Learn
This webinar will cover the following:
- A reminder of the legal principles: the Banks v Goodfellow test, which was recently confirmed to remain the applicable test by the decision in Re. That common law test will be compared with the test under the Mental Capacity Act 2005. Caselaw about the degree of understanding needed will be considered
- The recent discussion in the caselaw about insane delusions, particularly focusing on the appeal decision in Re Clitheroe
- 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, 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
This pre-recorded webinar will be streamed at 12:30pm on Monday 6th December 2021 and will remain available to view by delegates who have registered by then for 90 days.
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