A sensitive issue clients increasingly ask our advice on is whether the Will of a loved one who had dementia is valid. The short answer is – it depends.
In these cases, we will ask about the deceased’s health and surrounding circumstances at the time the Will was made; and whether a medical professional was involved. Only when we have the full picture can we form a view as whether or not the Will may be found to be invalid, and what the likely consequences may be.
It’s vital to seek prompt expert legal advice, if you do have concerns about the Will, particularly before the administration of the estate begins.
Sadly, dementia and Alzheimer’s are affecting a growing proportion of the population in England and Wales. Dementia is usually a slowly progressing illness and can eventually have devastating consequences for the patient and their family – eroding the individual’s memory and ability to understand and communicate.
Dementia and capacity
One of the most common grounds for disputing a Will is lack of testamentary capacity on the basis that the individual had dementia. However, the presence of dementia symptoms does not automatically mean the individual cannot make a Will or, for that matter, other important decisions.
Under the long-standing test for testamentary capacity (set out in Banks v Goodfellow (1870)), the individual must not have a mental disorder that shall “poison his affections, pervert his sense of right or prevent the exercise of his faculties”.
There is a legal presumption in favour of testamentary capacity, which means it is for the person challenging the Will to raise a real doubt that the testator lacked capacity.
Importantly, the mere fact that the individual showed symptoms of dementia, such as memory loss, does not in itself mean the Will is invalid. Even if there was a formal diagnosis of dementia at the time of the Will, this does not automatically rule out testamentary capacity.
Evidence
If you’re involved in a Will dispute where dementia is a factor, we will need:
- The original Will and any previous Wills made by the deceased
- The deceased’s medical records
- Any family notes and communications recording the deceased’s health and state of mind at the time of the Will
- The file of the solicitor/advisers who drafted the Will
- Details of the witnesses to the Will and any other witnesses
If we take a provisional view on the evidence that the Will may be invalid, we will advise of the steps to lodge a caveat with the Probate Registry, temporarily pausing the issue of a Grant of Probate. Then, once we have a fuller picture of the circumstances around the making of the Will, we can advise on appropriate next steps.
This may involve negotiation or mediation with the other interested parties with a view to reaching an agreed settlement. Most Will challenges are settled outside of the court room, but if litigation is commenced we will advise you throughout the process.
How we can help
If you are involved in a Will dispute where the deceased may not have had capacity to make their Will, please do not delay and get in touch with the contested probate solicitors at mfg Solicitors for prompt expert legal advice.
You can call Samantha Evans on 01562 820181 during business hours or email samantha.evans@mfgsolicitors.com for more information.