Three years after their father’s death, two brothers and a sister. An estate worth £1.2 million, completely frozen. Legal costs already past £150,000 and rising. They don’t speak to each other outside of solicitors’ letters. The fight is over a new will, made 11 weeks before he died, which cut one of them out completely.
The money is secondary. What’s at stake is the memory of their father and the future of their family. And it all could have been avoided.
The Point of Failure
When a will is challenged on grounds of capacity or undue influence, the first step is to question the solicitor who drafted it. This is done via a formal request for their notes and records. In the legal world, it’s known as a Larke v Nugus request. It is meant to provide clarity. Often, it reveals the opposite.
In this case, the solicitor’s file was thin. There were no detailed notes of the conversation. No record of why the father was making such a drastic change. Most importantly, there was no independent medical opinion on his mental capacity at the time he signed the document. This ambiguity is the fuel for litigation. It creates a vacuum of facts that gets filled with suspicion, anger, and barristers' fees.
The Real Protection
This is not a failure of law. It is a failure of planning. For any family with assets, particularly property, a will is not enough. The key defence against this kind of disaster is a Lasting Power of Attorney (LPA), registered and in place long before capacity becomes an issue.
Furthermore, if you are making a significant change to your will in later life, you must insist on a formal capacity assessment from a doctor. It is a simple, documented step. It costs a few hundred pounds. It provides a hard, factual backstop against any future challenge. Compare that to the six-figure costs and years of pain I see when families go to war. The maths is not complicated.
These are difficult things to consider. My job is to have these conversations with you, so your family doesn't have to have them in a courtroom.
If you have concerns, we should talk.
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Written by Sean Kiani, Estate Planner at Inheritance Made Simple. Sean writes and reviews the firm's guidance on estate planning, wills, trusts and inheritance tax, and works with families across Bournemouth, Poole, Dorset and Central London. Verify Sean's Society of Will Writers membership listing.