In order for a will to be valid, the testator (the person making the will) must have “testamentary capacity”. The test for testamentary capacity is set out in the case of Banks v Goodfellow. In order for their will to be valid, the testator must understand that they are making a will, broadly understand what property they are disposing of in their will, understand and appreciate the claims on their estate (i.e. who they might naturally wish to benefit in their will), and not be suffering under an “insane delusion”.
With an aging population and an increase in age-related memory problems (including dementia), challenges to wills based on capacity are becoming increasingly common. If there is a concern that a will may be invalid because of capacity issues, the starting point is often to obtain the testator’s medical records.
When a person dies their medical records remain confidential, and not everyone will have the right to apply for them. However, the Access to Health Records Act 1990 does allow certain people to obtain the medical records of someone who has died. The Act refers to the person who has died as “the patient”.
The people who are entitled to apply for the patient’s medical records after their death are:
- the patient’s personal representatives; and
- any person who may have a claim arising out of the patient’s death.
A personal representative is someone who is appointed as an executor in the testator’s last will, or someone who is entitled to administer their estate under the intestacy rules (if they had no will).
Often, someone who is looking to obtain the medical records to support a will challenge will not be the personal representative. In these circumstances, the person looking to challenge the will can either ask the personal representative for their consent to the medical records being released, or can make their own application for the medical records.
If the person looking to challenge the will would inherit under a previous will or the intestacy rules, then they will likely fall into the second category, and will be entitled to apply for the medical records as “a person who may have a claim arising out of the patient’s death”. This is extremely useful when the personal representative will not agree to the medical records being released, or when it is preferable to obtain the records without involving them.
In the recent case of Tubb v Rosmellyn Surgery the claimants wanted access to their mother’s medical records. Their mother had changed her will less than six months before her death (and shortly after a stay in hospital). The new will excluded the claimants in favour of their estranged sister. The claimants requested the records from their mother’s GP Practice on the basis that they had a claim arising out of their mother’s death. Unusually, the GP Practice refused to provide the records, and the claimants were forced to bring an application to court.
The court confirmed that a probate claim (i.e. a challenge to the validity of a will) is “a claim arising out of the patient’s death”. The claimants were therefore entitled to their mother’s medical records, which would likely contain important evidence for the will challenge.
If you have questions about obtaining the medical records of someone who has died, or if you have concerns about the validity of a will, then please get in touch and a member of our specialist private wealth disputes team will be happy to assist.