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Can a Will be challenged where the testator is still alive but has lost capacity.

A Will is confidential, and during the testator’s lifetime, no disclosure can be made by a solicitor except to someone authorised by the testator, or where the testator has lost capacity, by the Court of Protection or someone with the relevant authority on the testator’s behalf. In this case, it seems like there may be a good reason why a deputy or attorney or the court might give such disclosure. Alternatively, a commercial arrangement with regard to the funding and assistance might be sought.

If there is thought to be a potential dispute about the validity of the Will, the individual could apply to the Court of Protection for it to consider making a statutory Will on the testator’s behalf, under the Mental Capacity Act 2005. The terms of the existing Will may be relevant to the assessment made by the Court, as will the extent of the testator’s capacity at the time. Further, the court may think it in the testator’s best interests to make a new Will in order to avoid the risk of litigation after the testator’s death.

If you would like a chat to discuss further, please feel free to contact me for a free 30-minute consultation.

Sophie Campbell

01637 800 306

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