Proper inheritance planning is naturally a top priority for high net worth individuals and a recent UK court ruling has underscored the need for extreme care during the will-writing process if the document is to stand up to challenges – particularly those around mental capacity – West End law firm Seddons has warned.

The recent High Court case of Ashkettle v Gwinnett centred on the efforts of two brothers to challenge the will of their mother, who had excluded them in favour of their sister, who was heavily involved in the drafting of the will as the mother was suffering from advanced Alzheimer’s. The brothers, who were represented by Seddons, emerged victorious, the Judge having decreed that just because a solicitor was involved in drafting it the will it was not immune to being challenged.

Naturally, wills which have had experienced solicitor involved in their preparation and execution are far harder to set aside and Seddons points out that most disputes in such cases centre on mental capacity. Therefore, the firm advises that proof of testamentary capacity (as separate to general mental capacity) is put in place.

“Fundamentally, it [testamentary capacity] means knowing what a will is and its effect, knowing broadly of what one’s estate comprises, knowing and recognising the identity of those who others would most expect you to wish to benefit, and not suffering from delusions which may poison your affections for such people,” said John Melville-Smith, a solicitor at Seddons who acted for the brothers in the Ashkettle case.

“When a testator is elderly or has been ill, the making of a will ought to be witnessed or approved by a medical practitioner who is satisfied of the capacity and understanding of the testator, and records this examination and finding. While this provides no guarantee against the will being challenged successfully, those challenging it will face an uphill struggle to overturn it.”

As common sense would also dictate, Melville-Smith also advises that the beneficiaries of a will – especially sole beneficiaries – have as little to do with the process of making the document as possible so as to avoid any charge of duress. (This having been an important factor in the Ashkettle case.)