A Dementia diagnosis doesn’t stop you changing your Will

19th June 2014

A Dementia diagnosis doesn’t stop you changing your Will

A diagnosis of Dementia does not mean you do not have the mental capacity to review your Will. If you do have a diagnosis we would advise that you review your Will using a Solicitor who can ensure it is completed correctly leaving it less likely to be vulnerable to challenge. In a recent case a son thought his mother’s diagnosis rendered her incapable of deciding who her estate should be left to. The Court of Appeal thought differently.

A businessman engaged in a marathon dispute with his siblings over their £2 million inheritance has failed to convince the Court of Appeal that his mother was so badly affected by dementia that she lacked the mental capacity to execute a valid will.

Under an earlier will, the businessman had been left a residential property and 16 crucial shares in a family company, which would have given him a controlling interest in the business. But his mother, who died aged 91, made a new will on her 88th birthday, leaving all but £20,000 of her estate equally between her three surviving children and the family of a fourth child who pre-deceased her.

‘If there is one apple, it ought to be divided into four’, was one of the mother’s favourite sayings; however, the businessman nevertheless argued that she lacked testamentary capacity when she signed the will and did not have the required knowledge and approval of its contents.

His legal team pointed out that his mother had written about the great help he had given the rest of the family since the death of his father and that it had been he who had taken over and grown the family company. The equal division of the 16 shares would also leave the business in deadlock.

His arguments failed before the High Court and, in dismissing his appeal, the Court of Appeal found that, although she had suffered from dementia for several years and was not as mentally sharp as she once had been, the mother knew what she was doing when she appended her signature to the will.

The businessman’s lawyers argued that, by the time the will was executed, his mother could not remember exactly what assets she owned or why she had favoured him in her previous will. She was also said to have sometimes forgotten that her oldest son had died the year before.

However, the Court noted evidence that she had not wanted to benefit any one of her children more than the others and that she was well aware that her departure from her previous will would be to the businessman’s detriment. The conclusion that she had made a conscious decision was fully supported by the evidence.

The draft will, which was in relatively simple terms, had been read twice to her before she signed it and she had appeared to understand it after reading it again to herself. The conclusion that she had full knowledge of its contents, and approved them, was in the circumstances ‘unassailable’.

For all aspects of Wills, Probate, challenging Wills and mental capacity issues please contact our private client team on 01473 211121

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