The Importance Of Medical Records When Contesting The Validity Of A Will

When challenging the validity of a Will, the grounds to challenge must be established and the claimant seeking to challenge the validity will need to provide evidence in support of the challenge.

What are the grounds for contesting a Will?

The grounds for contesting a Will are as follows:

Health of the testator and medical records

The health of the testator at the time of making the Will is often a focus point. As such medical records for the deceased should be obtained to establish the deceased health and mental capacity at the relevant times.

The Access to Health Records Act 1990 (AHRA) enables a person to make an application for a copy of the records of a deceased person if they may have a claim against the estate or are an executor or administrator. Where someone has concerns about the validity of the Will, they can make an application for the records to be released. Where a solicitor is instructed concerning the challenge of a Will, they can make this request on behalf of the individual who intends to contest the Will.

Recent changes to the process dictate who the application for the release of medical records should be made. This is decided based on the date of death of the deceased. If an individual died before 1 August 2022 then Primary Care Support England will hold the records and an application should be made to them. Where an individual dies after this date then their last known registered GP will hold the records.

Where the person wishing to contest the Will and make an application for the records does not know the last known registered GP of the deceased, Primary Care Support England can provide this information.

The records may provide an unbiased record of the deceased’s mental state at any given time. In some cases, it may be clear from the records that the testator was not of sound mind when creating a Will, and in such cases, it may be necessary to instruct a capacity expert to provide a retrospective report to confirm what position the deceased was in at that time. This report could be a deciding factor for the Court when considering if the Will is valid or not based on capacity.

Medical records can be important in establishing whether an individual had the capacity at the time of making their Will, if they were under the influence of someone or vulnerable at any time. These records should be obtained early on in a dispute and are crucial in understanding the deceased’s mental and physical health at the time of making a Will and may help to strengthen a Will challenge claim.