Disputes over contents of wills are quite common. Especially during COVID that limits contact between family members. Some testators change their minds quite frequently. Long COVID can affect mental ability in the short term. Hence more people may be asking how to access medical records of deceased persons than before.
Disputing a Last Will and Testament – An Overview
A person making a will has few restrictions over their decisions. That’s provided the assets they mention are legally theirs, and they have a right to dispose of them. Claiming they were not of sound mind, and lacked sufficient mental capacity is a potential way around challenging such decisions. Especially since the deceased is no longer available for psychometric tests.
Many such claims reason in terms Hawes versus Burgess (2013). This was a case where a sister appealed against a bequest that disinherited her brother. She won, although the legal costs absorbed the entire value of the estate. The core judgement was as follows, courtesy Lesley King writing in The Law Society Gazette:
‘The basic legal requirement for validity is that people are mentally capable of understanding what they are doing when they make their will, and that what is in their will truly reflects what they freely wish to be done with their estate on death.’
How to Determine Diminished Mental Capacity
A dispute against the validity of a will often involves applying to access medical records, in orer to determine the psychological state of the deceased. The case of Banks versus Goodfellow has laid down the rules of play since 1870. In a nutshell it says a person has testamentary capacity when:
1… They understand the content of their will and its consequences.
2… They have a grasp of the property disposed of under their will.
3… They are conscious of the persons society expects them to support.
4… They are free of ‘any delusion of mind’ that might cloud their judgement.
However, the final decision usually depends on whether the delusion or disorder causes them to decide differently from what might otherwise have been the case. Such a decision will take the medical records of the deceased person into account.
Are You Suffering from LONG COVID Symptoms (National Health Service)
How to Access Deceased Medical Records in England
A person wishing to challenge the validity of a will is usually the executor, or a person who considers they are unfairly disadvantaged. They will need to know how to access the medical records of the deceased, and follow appropriate procedures to obtain them. Lesley King explains there are two main resources available in England.
Records Held by Primary Care Support England
Primary Care Support England provides administrative support to GP practices, pharmacies, dentists and opticians in England. This includes administrative and payment services, sending out test results, managing supplies, and maintaining the list of medical providers.
General practitioners in England return the files of deceased patients to Primary Care Support England after they pass on. The service retains them for ten years before destroying them. The Access to Health Records Act (1990) describes how to access medical records in England.
1… The executor or administrator of a deceased estate may apply for a copy of the medical records without paying a fee.
2… The only other people legally entitled to do so, are those with claims arising from the estate. There is no fee for this either.
Additional Information from Care Records
Hospitals in England do not fall under the remit of Primary Care Support England. Hence, separate applications must be made directly to their records managers, who may charge a fee for the service. Care homes may also hold relevant records.
Applications to Primary Care Support England
The process begins with downloading and completing an application form from Primary Care Support England. This form – with any supporting information / proof of mandate – must be emailed to the authority after checking the instructions thoroughly.
Care must also be taken to mention relevant dates, and include a detailed explanation of any claim intended. Health professionals at Primary Care Support England have the final decision. They may request further information to substantiate the request. They also have a right not to disclose information that might breach the privacy of the deceased.
Foot Note: Applications in Wales
The procedure is similar if the deceased resided in Wales. However, interested parties must make their applications to access medical records to Primary Care Services Wales.
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Preview Image: Mental Capacity / Law of Contract
