Probate actions—obtaining the deceased’s medical records

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Probate actions—obtaining the deceased’s medical records
  • Access to Health Records Act 1990
  • Practicalities
  • Data protection
  • Practical pointers

Probate actions—obtaining the deceased’s medical records

In order to mount a successful challenge to the validity of a Will, a claimant will need to provide evidence in support of their claim, and the defendants who seek to uphold the Will also require evidence for their defence.

The physical and mental health of the testator is likely to be highly relevant to all types of challenge.

Most obviously, a claimant who alleges that the testator lacked mental capacity will usually wish to anchor their claim in medical evidence supported by analysis provided by an expert in geriatric psychology confirming that at the relevant date the testator did not meet the relevant test(s) for mental capacity.

However, medical evidence is also relevant to other types of challenge. A claim for lack of knowledge and approval may be more likely to succeed if it can be shown that the testator’s mental faculties were low at the relevant time. It is harder for someone suffering, say, the early stages of dementia to understand complex Will provisions than it is for an elderly person who is in good health.

Likewise, claims for undue influence and fraudulent calumny often seek to establish that the testator was in poor health and therefore more susceptible (and less able to withstand) the alleged pressure from the person who sought to procure the terms of the Will.

Finally, the health

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