Obtaining Medical Records to support a Challenge on a Will (Access to Health Records Act)

How to Get Medical Records to Challenge a Will

If you believe your loved one was not mentally well enough to make their Will, medical records are often the most important evidence you can obtain. They can reveal diagnoses, medication, cognitive assessments and clinical observations that paint a picture of your loved one’s mental state at the time the Will was signed.

But how do you actually get hold of those records? And what are your legal rights? This guide explains the practical steps, the law behind your right of access, and how those records are used when a Will is challenged. If you do have grounds to contest the Will, specialist solicitors can act on a no win no fee basis.

What Records Should You Request, and From Whom?

Medical records relevant to a capacity challenge are not limited to a single source. You should consider requesting records from:

• The GP surgery: GP records are usually the most comprehensive. They contain consultation notes, referral letters, test results and prescriptions spanning years or even decades. The notes around the date the Will was signed are particularly important.
• Hospitals: If your loved one was admitted to hospital or attended outpatient clinics, those records may document cognitive assessments, diagnoses of dementia or delirium, and observations by nursing staff.
• Mental health services: Community mental health teams, memory clinics and psychiatric services keep detailed records of assessments and treatment plans.
• Care homes: Daily care notes can be revealing. They often record confusion, disorientation, or behavioural changes that formal medical records may not capture.

The key period to focus on is the months either side of the date the Will was executed, though a broader picture of your loved one’s cognitive decline is often helpful.

Your Legal Right to Access a Deceased Person’s Medical Records

Many people assume that data protection law prevents them from accessing someone else’s medical records. For deceased individuals, the position is more straightforward than you might expect.

The Data Protection Act 2018 and UK GDPR do not apply to deceased persons. This means you cannot use a Subject Access Request to obtain the records of someone who has died, but it also means that data protection rules are not a barrier to disclosure.

Instead, access to the medical records of a deceased person is governed by the Access to Health Records Act 1990. Under this Act, the following people can apply for access:

• The personal representative of the deceased (the executor named in the Will, or the administrator of the estate).
• Any person who may have a claim arising out of the patient’s death — this is set out in section 3(1)(f) of the Act.

If you are bringing or considering a claim that relates to your loved one’s death or their estate, you fall within the second category. A potential challenge to the validity of the Will on grounds of lack of mental capacity is exactly the type of claim the Act contemplates.

How to Make the Request: A Step-by-Step Guide

Step 1: Identify the record holder. This will be the GP surgery, hospital trust, or other organisation that holds the records you need.

Step 2: Write a formal request. Address it to the practice manager (for a GP surgery) or the medical records department (for a hospital). Your letter should include:

• The full name, date of birth and date of death of the deceased.
• Your name and your relationship to the deceased.
• The basis for your application — state that you are applying under the Access to Health Records Act 1990, either as the personal representative or as a person who may have a claim arising from the patient’s death.
• The records you are requesting and the relevant time period.
• A copy of the death certificate.
• Proof of your identity.
• If you are the personal representative, a copy of the grant of probate or letters of administration (or the Will, if probate has not yet been granted).

A useful opening line for your letter:

“I am writing to request access to the medical records of [name], deceased, pursuant to the Access to Health Records Act 1990. I am [the personal representative of the deceased / a person who may have a claim arising out of the patient’s death] and I request disclosure of all records held by your practice/trust for the period [date] to [date].”

Step 3: Allow time for a response. The record holder must usually provide access within 40 days of receiving your application. A fee may be charged, though NHS Digital guidance states that any fee should be reasonable, and fees are not usually charged in the first instance.

Step 4: Chase if necessary. If you do not receive a response within the period, write again and remind the record holder of their statutory obligation under the 1990 Act.

What to Do If the GP or Hospital Refuses

The record holder can refuse access in limited circumstances:

• If the records contain information that the patient provided in expectation that it would be kept confidential from you specifically.
• If disclosure would be likely to cause serious harm to the physical or mental health of any individual.

These exceptions are narrow. Our panel solicitors have said to us that general reluctance to release records, or a vague reference to “data protection”, is not a valid reason for refusal. Remember, the Data Protection Act 2018 does not apply to deceased persons.

If your request is refused, you should:

1. Ask for the refusal to be put in writing, with specific reasons.
2. Take legal advice — a solicitor experienced in contentious probate can write to the record holder on your behalf, which often resolves the issue. Our panel of specialist contentious probate solicitors can potentially assist here.
3. If necessary, an application can be made to the court to compel disclosure.

What an Experienced Solicitor Looks for in the Records

Once the records are obtained, a solicitor experienced in Will disputes will review them for evidence relevant to the legal test for mental capacity. The test comes from the landmark case of Banks v Goodfellow (1870) and requires that, at the time the Will was made, the person making it:

1. Understood the nature of making a Will: that they were deciding who would inherit their property after death.
2. Understood the extent of their property: a broad appreciation of what they owned.
3. Was able to consider the claims of those who might expect to benefit: for example, close family members.
4. Was not suffering from a disorder of the mind that distorted their judgment or “poisoned their affections” towards people who would naturally have a claim on their estate.

A solicitor can look for entries in the medical records that shed light on each of these elements. Diagnoses of dementia, Alzheimer’s disease, delirium, or other cognitive impairment are obviously relevant, but so are more subtle entries: references to confusion, memory loss, paranoia, or a failure to recognise family members, loss of independent decision making.

Your solicitor should also check whether the “golden rule” was followed. This principle, established in Kenward v Adams, says that when a solicitor is preparing a Will for someone who is elderly or seriously ill, they should arrange for a medical practitioner to assess the person’s capacity and confirm they are fit to make a Will. If no such assessment was carried out, that is a significant red flag.

How Medical Records Are Used in Court

Medical records alone do not decide the case, but they form the foundation of the evidence. In many contested capacity cases that go to court, the court will hear from an expert witness, typically a consultant psychiatrist or geriatrician, who carries out a retrospective assessment of the deceased’s capacity.

This expert reviews the full medical records, together with any witness statements from family, friends, or the solicitor who prepared the Will, and provides an opinion on whether the person met the Banks v Goodfellow test at the relevant time. The more detailed and complete the medical records, the more reliable that expert opinion will be.

This is why obtaining the records early is so important. They can be the single most valuable piece of evidence in a capacity challenge, and without them, an expert cannot give a full and meaningful opinion.

Challenge a Will on a No Win No Fee Basis

If you believe a loved one’s Will does not reflect their true wishes because they lacked mental capacity, obtaining their medical records is the essential first step.

At C-PAID, we can put you in touch with specialist will dispute solicitors who can assess the strength of your case on a genuine No Win No Fee basis. There are no upfront fees and no charge for the initial review of your enquiry. Our panel solicitors can help you obtain the records you need and guide you through every stage of the process.

Contact us today for a free, no-obligation discussion of your circumstances.

This article is for general information only and does not constitute legal advice. Every case depends on its own facts. C-PAID does not provide legal advice. We help connect people with specialist contentious probate solicitors.