Q&As
A is the sole executor and sole residuary beneficiary under B’s Will. C, is challenging the validity of the Will on the grounds of testamentary capacity. There are no court proceedings. A has said he is responding as executor and he asserts that B had capacity and claims his costs of obtaining a medical report and associated solicitors costs can be paid by the estate–is this correct, and is obtaining a medical report going beyond an executor’s duty to remain neutral? Should such costs be borne by A personally in his capacity as beneficiary?
Published on: 01 October 2021
Where court proceedings have not been issued, the appropriate action to be taken by A, as executor, will depend on the extent to which the testator’s capacity to make the Will is in doubt and how far C’s challenge to the Will has been taken.
The burden of proof of capacity has always rested in the first instance with the person proving the Will. The personal representatives have to prove that the Will is valid. This involves proving that all the necessary
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