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The ‘Burden of Proof’ in Challenges to Wills Based on Lack of Capacity

Sep 18, 2017
A case decided in the County Court this summer is a good example of how the burden of proof can shift from one party to another in cases concerning the validity of Wills, and the advantage this can bring for the party seeking to overturn the Will.

The usual position is that if the Will is duly executed and is rational on the face of it, the party who claims that the Will is invalid due to lack of testamentary capacity has the burden of proving a real doubt that the testator lacked sufficient capacity. 

If a real doubt over capacity is raised by that person, the evidential burden of proof swings back to the party seeking to uphold the Will, to establish that in fact the testator did have capacity.

In July, judgment was handed down in the case of Hamesh Lal Ram and others v Rashpal Lal Ran Chauhan and others where this swing in the burden of proof was instrumental in the outcome. The case concerned the Will of Sibo Kaur, which she made in 2012 at the age of 82, in favour of one of her three sons. Her other two sons challenged the validity of the Will and produced evidence in the form of GP and hospital records relating to symptoms of confusion and short-term memory impairment. The judge was of the view that the evidence produced was just about sufficient to shift the burden of proof back to their brother, to establish that his mother did indeed have capacity.

However, the son defending the Will had missed the deadline for filing and serving evidence and so was unable to adduce either witness evidence or expert evidence to discharge this burden.

As a result the judge had little option other than to declare the Will as invalid. The two sons were able to increase their chances of success by shifting the burden of proof. 

Should you have any questions or require any further information regarding Will disputes please contact Daniel Winter, Partner in our Wills and Trusts Dispute Resolution Team, on 01279 755777.

Daniel is also a full member of the Association of Contention Trusts and Probate Specialists, the recognised body of lawyers specialising in this complex area of work.

Daniel Winter

About the author

Daniel Winter

Daniel joined Nockolds in 2009 and is a Partner in our Commercial and Property Litigation Team. Daniel has been practising as a qualified Solicitor for ...

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