Can you access medical records of a deceased to contest a will?

Who can access the medical records of someone who has died? Laura Abbott, Principal Associate in the Disputed Wills and Trusts team at Shoosmiths, explains how to access medical records in order to contest a will’s validity.

Medical Records Contest a Will

Why might you want to access medical record to contest a will?

In order to contest a will’s validity, grounds to challenge need to be established. One such ground is that the person making the will (‘the testator’) was not able to make a valid will at the material time because of a lack of sufficient mental capacity, known as testamentary capacity.

“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”(Hawes v Burgess [2013] EWCA Civ 74)

The formal legal test as to whether a person has testamentary capacity was set out in the 1870 case of Banks v Goodfellow. Under that test, the testator should understand:

  • the nature of his act and its effect
  • the extent of the property of which he is disposing
  • the claims to which he ought to give effect

The testator must also not have a disorder of the mind or insane delusion, which ultimately brings about a disposal of his property which he would not have made if he had been of sound mind.

To consider whether a testator had testamentary capacity, key evidence for a court is the deceased’s medical records. Therefore, this should be one of the first pieces of evidence obtained in assessing the merits of any potential claim.

Who can access the medical records of someone who has died?

When a person dies, their GP health records are returned to Primary Care Support England (PCSE) for storage. They are generally retained for 10 years, then destroyed.

Under the Access to Health Records Act 1990 (AHRA) a person can apply for a copy of those records if they are an executor or administrator (the person(s) responsible for dealing with a deceased’s estate), or if they may have a claim arising from the death. This means that someone who is concerned about the validity of a will has the right of access and can apply without the executor or administrator’s consent for a copy of the records. Solicitors can apply on the concerned person’s behalf with their written consent.

How do you apply access the medical records of someone who has died?

The application is made by downloading and completing the application form. Once completed, it should be returned, together with supporting documents (detailed on the form but including copies of the applicant’s identity documents and, if applying as executor or administrator, a copy of the will/grant of representation) to pcse.accessrequests@nhs.net.

The application can take up to 40 days to process. There is no fee payable.

When making the application the applicant should give details of the time periods required (IE. around the date of the will) and must provide a detailed narrative of their potential claim. Health professionals will review the application and decide what can be released and they may ask for more information to support the application. Information not directly relevant to the claim will not be disclosed and sensitive information may be redacted to protect the privacy of the deceased.

Please note that:

  1. If the deceased lived in Wales the process is the same but the application will need to be made to nwssp-primarycareservices@wales.nhs.uk.
  2. If required, hospital records are retained by the records manager at the relevant hospital and a separate request would need to be submitted directly to them. A fee may be payable for this.  Likewise, care homes retain their own records. 

About the author

Laura Abbott is a Principal Associate in the in the Disputed Wills and Trusts team at Shoosmiths and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

Everything you need to know about testamentary capacity

Disputing a will - the practical considerations

Using a caveat to prevent a grant of probate

The duties of an executor: what to do when someone dies

Find out more

Access to Health Records Act 1990 (Legislation)

Access to Health Records Request (PCSE)

Image: Getty Images

Publication date: 3 August 2021

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.