The Review has joined forces with local solicitors Debenhams Ottaway to offer our readers the best legal advice.

Below Senior Associate Solicitor Richard Gilbert answers a readers questions about challenging a will.

Question: I have just discovered that I was disinherited by my mother when she made her Will a few weeks before she passed away last year. At the time my mother made her Will, her health was already in decline and I believe she may not have been in possession of all her mental faculties. What can I do to challenge the Will that has now been produced?

Richard Gilbert, Senior Associate Solicitor, Debenhams Ottaway responds: We were sorry to learn of the death of your mother.

If you suspect that your mother may have lacked what is called ‘testamentary capacity’ when she made her Will then you could challenge the Will’s validity. You need to write to the Executors, putting them on notice that you believe that your mother may not have been in full possession of her faculties at the time she made her Will and that it might be invalid. Once you do that, the Executors will be responsible for proving that the Will is valid if they want to carry out what it says.

Assuming the Will was properly signed and witnessed correctly, the Executors will need to prove that your mother was of full age, possessed soundness of mind, memory and understanding and possessed the requisite ‘testamentary intention’ to make a Will. This means that the Executors will need to prove that your mother intended to make a Will as opposed to another document; that your mother was able to tell the person who drafted her Will what the extent of her property was in general terms; and that your mother could identify who it was who could expect to inherit from her but for whatever reason she chose not to leave them anything.

In a case like this, the starting point would be to ask for a copy of the file of the person who drafted the Will. That way you should be able to see whether the person who drafted the Will for your mother addressed whether or not your mother had testamentary capacity. In addition, you may need to consider obtaining your mother’s medical records. This may involve asking your mother’s GP and/or consultant for a copy of her medical notes. The fact that somebody was ill at the time of giving instructions for their Will to be drawn and/or signed does not mean that they lacked testamentary capacity. Whilst that illness may impact on their general state of health, it does not mean that they did not intend to make a Will, had no knowledge of the extent of their property nor appreciated the claims that other members of their family could have upon their wealth.

If this is an area of law that affects you, we would strongly recommend that you take specialist legal advice.