Accessing Medical Records to Contest a Will

Alana Graham
Author:
Alana Graham
Associate Barrister-at-Law, Contentious Probate
Date:
24/11/2020

There are a few reasons why a family member may want to access the medical records of a loved one after they’ve died.

This might be to determine whether a medical diagnosis was missed, for example if someone died of cancer, or because you have a potential claim after the person’s death. But there are strict rules around accessing someone’s medical records after death, and it’s not always possible to do so.

If you may be contesting a Will and want to access your loved one’s medical records, get in touch with our Contentious Probate Solicitors for free initial legal advice. Our approachable and sympathetic team can discuss your situation and let you know if we think you’ve got grounds for a claim.

Call us on 08002605010 or request a callback and we will help you.

Who Can Access Medical Records after Death?

Under the Access to Health Records Act 1990, you can only access someone’s medical records if you’re:

  • The Personal Representative of the person who died (such as the Executor or Administrator of the Estate)
  • Someone who may have a claim as a result of the person’s death (usually a dependent such as a husband, wife, civil partner or child). In this case, you can only access information that is directly related to the claim

If you’re looking to make a claim about the validity of a Will, this is where things can get a little more complex, especially if the Personal Representative is refusing to get involved and help you access the records.

Another issue you might face is that, in England and Wales, a person’s privacy rights to their medical records can be extended even after they die, if they requested it. If this is the case, no one will ever have the legal right to access the medical records of the person who has passed away.  

What Challenges Could this Cause?

Even if you’ve got a legitimate reason for wanting or needing to access the medical records, the Access to Health Records Act states that if there’s a note on someone’s medical record saying that they don’t give permission for anyone to access their records after their death, then this has to be respected.

We understand that this can cause some challenges for family members wanting to contest a Will by using your loved one’s medical records to show that their Will may be invalid. This is called contesting a Will on the grounds of Testamentary Capacity.

Testamentary Capacity

Testamentary Capacity refers to someone’s mental and legal ability to make a Will. If it can be proven that someone lacked testamentary capacity when making their Will, then the Will is invalid.

If you want to contest a Will because you believe that the person who made it lacked the mental ability to do so, then accessing their medical records is usually a crucial part of supporting your claim with strong evidence.

But what happens if the person who made the Will specified that no one can access their records?

Well this may make your claim a little trickier, as medical records and doctors’ statements are invaluable evidence when it comes to proving a lack of testamentary capacity in making a Will.

Instead, you may have to rely on witness statements from those who knew the person who died, or consider taking legal action to fight for your right to access your loved one’s medical records.

Help with Contesting a Will

If you’d like expert legal advice about contesting a Will, our Contentious Probate Lawyers will be happy to help you. We’ve helped many clients make a successful claim after proving that a Will was made without testamentary capacity.

Get in touch for a free initial discussion to see if you’ve got grounds to contest the Will.

For free legal advice call our Contentious Probate Lawyers

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