Examining Testamentary Capacity: Who Bears the Costs?

Dealing with the loss of a loved one is undeniably challenging, especially when there are concerns about their cognitive function during their last days. Such doubts can lead to questions about the validity of their Will, especially if there have been significant changes in its contents that impact the beneficiaries left behind.

In some cases, a decline in cognitive function may result in a loss of testamentary capacity, affecting a person's ability to make a valid Will. However, it is crucial to understand that the test for testamentary capacity is functional, meaning a person with a mental illness can still possess testamentary capacity if it is shown that their condition did not influence their Will-making decisions.

Due to the complexity of the matter and the gradual nature of cognitive decline, it becomes essential to investigate the medical records and will-making patterns of the deceased to determine the validity of their Will. These investigations come with costs, and it may not be possible to ascertain the validity without them.

The question arises: who should bear the costs of these investigations? While one might assume that the expenses would be covered by the deceased person's estate, courts recognize the public interest in ensuring the admission of valid Wills to probate and flushing out invalid ones. As a result, there is an acknowledgment that, under certain circumstances, the costs of investigating the testamentary capacity of the deceased should be reimbursed by the estate, especially if the investigation proves the Will to be invalid.

However, if there is genuine doubt about the validity of a Will, and it is eventually proven to be valid, the issue of reimbursement depends on the strength of the evidence supporting the alleged doubt. The courts consider whether there was a 'genuine doubt about validity' and have found that to be justified in seeking reimbursement, the challenger must present stronger evidence, rather than just an arguable case or a 'triable issue as to frailty or capacity.'

An example of a successful investigation is illustrated in the case of Middlebrook v Middlebrook, where the challenger's costs were borne from the estate due to the circumstances surrounding the investigation and challenge. However, such cases are the exception, as many investigations and challenges are based on weak grounds and may not warrant reimbursement.

In conclusion, if you believe an investigation into the testamentary capacity of a deceased person is justified, seeking legal advice is crucial to understand the potential consequences. There is a possibility that you may have to bear the investigation costs without reimbursement if the basis for challenging validity is not strong enough.

To minimize conflicts and expenses, it may be helpful to seek agreement among the affected parties on a protocol for the investigation. This approach can distribute costs among the parties involved and possibly avoid prolonged litigation.