Can a will be contested after death or only during life? How a forensic psychiatric examination can help defend or contest a will

Who is capable of making a will?

Testamentary capacity refers to a person’s legal capacity to draft a
will: legal document that describes how assets and properties will be distributed
after death. For a will to be valid, the person must be considered
able to do so by being able to express their will objectively. This involves
some essential elements:

1 – Age

There is no minimum age to make a will, and anyone can do it.
as long as the law does not consider them incapable of doing so. Unemancipated minors and
accompanied adults considered incapable of testing (according to the sentence of
monitoring), they cannot do so. Previously these were called: interdicts
(when they were incapable of managing their lives and property) or incapacitated (incapable of managing their
your assets). The idea behind it is to ensure that the person has the awareness to make the decision
important information about how to distribute your assets.

2 – Mental Capacity

The person must be in full possession of their mental faculties and be able to
understand the nature and consequences of your decision. If someone is under the
influence of illness or other disability that affects your ability to understand and
cognitive capacity, for example dementia, your will may be questioned.

3 – Free Will

The will of the testator must be free from any coercion or undue pressure. O
Will should be a reflection of the individual’s true intentions, not a product of
manipulation. If it is alleged that the will was signed under duress, threat or fraud, this
can be challenged.

Once signed, is it possible to revoke a will?

Yes, when the person who made the will later shows, for example, signs of
cognitive impairment, the interested party has the option of contesting the validity of the will.

This is because, in light of Portuguese law, until proven otherwise, it is presumed that the person is
able to make a will. Thus, the family member or alleged heir who intends to
to contest, probably because you feel aggrieved and do not agree with the division of assets, is
which will have to prove that the testator was incapacitated at the time of the will.

To this end, an independent psychiatric examination is carried out to determine whether, at the date of signature,
of the will, the testator was really capable or not, which will influence the
success of the case in court.

And after the death of the testator?

Yes, too, but these cases in which the will is contested post-mortem are quite
rare. As the tester is no longer alive and cannot be evaluated by a doctor, It is
required that there be significant medical documentary evidence that substantiates the alleged
(in)capacity to test.

The testator’s medical documentation, such as clinical reports from
neurology/psychiatry/psychology, neuropsychological assessment and diagnostic tests, despite
of being covered by medical confidentiality, can be obtained in accordance with legitimate interests.

An independent and well-founded psychiatric opinion raises reasonable doubt
and legitimate claim before the court regarding the real (in)capacity of the testator at the date of the will,
in order to promote the carrying out of official expertise at the National Institute of Medicine
Legal and Forensic Sciences (INMLCF).

On the other hand, whether in life or after death, if there is already an official public examination with
inconsistencies, it is possible to contest by stating these flaws, in the form of an opinion
private giving rise to the contradictory. This will allow the judge to substantiate the
request for a second expert from the same Institute, which will be carried out by a new expert,
thus giving a greater probability of success as intended.

How can I prevent my will from being contested?

When disputes between family members and heirs are anticipated, it is crucial to prove, through
medical expertise, that the testator is cognitively capable of making decisions,
before and on the date of the will. In these cases, it will be more difficult in the future to contest this
testament.

The testamentary capacity examination is carried out by a forensic psychiatrist and includes:

• analysis of medical reports from neurology, psychiatry, neuropsychology and/or psychology;
• analysis of complementary diagnostic tests such as MRI or head CT
• mental status examination;
• assessment by neuropsychology.

Additionally, the law also provides for the presence of medical experts at notaries during the act of
will that endorse the mental health of the testator, whether at the request of the author of the
testament, or by the notary himself.

Thus, in this way, we prevent the will from being called into question later on,
claiming that the person did not have the psychic capacity and free will to do the
testament.