Discovering that a loved one changed their Will shortly before they died can be upsetting and distressing, particularly where the changes have an adverse effect on those closest.
That is particularly true if they had been diagnosed with dementia and the contents of the Will come as a complete surprise.
A question we are frequently asked is:
"Can I challenge the Will because my relative had dementia?"
And the answer is, “possibly”.
However, it is important to understand that a dementia diagnosis does not automatically invalidate a Will.
Equally, a person can make unwise decisions, have an imperfect memory, but still make a valid Will.
Many people are surprised to learn that a person can have dementia and still make a valid Will.
This is because dementia affects people in different ways and has differing levels of severity.
Every situation must be assessed on its own facts.
Our Contentious Probate Lawyers explain more below.
What Does the Court Look At?
When deciding whether someone had the capacity to make a Will, the court will consider whether they understood:
- That they were making a Will
- What assets they owned
- Who might reasonably expect to benefit from their estate
- Whether the dementia (or any other disorder of the mind) affected the decisions they made.
This legal test for testamentary capacity is set out in Banks v Goodfellow.
Importantly, the Mental Capacity Act 2005 does not apply.
What Evidence Might Suggest There Is a Problem?
Families often tell us that they "just know" something was not right.
Whilst those concerns may be genuine, they will not satisfy the test.
Ultimately, medical evidence is required.
Some examples that can raise questions about capacity include:
- Significant memory problems around the time the Will was made
- A diagnosis of dementia or Alzheimer's disease
- Medical records showing confusion or cognitive decline
- A dramatic and unexplained change from earlier Wills
- Evidence that the deceased did not recognise close family members
- Concerns raised by carers, doctors or other professionals
- Unusual behaviour around the time the Will was signed
No single factor will automatically prove that a Will is invalid, but a combination of issues may justify further investigation.
"But the Will Was Prepared by a Solicitor"
Many people incorrectly assume that a professionally prepared Will cannot be challenged.
Solicitors are trained to identify potential capacity issues, and there is practice guidance regarding obtaining evidence of capacity.
Their evidence can be extremely important. However, solicitors are not medics, and their assessment may not be accurate.
In some cases, medical information may not have been available to the solicitor.
In others, concerns about the deceased's condition may only become apparent after further investigation.
For that reason, obtaining the solicitor's file is often one of the first steps taken when a Will is challenged.
What Should I Do If I Am Concerned?
If you believe a Will may be invalid because of dementia (or any other capacity concerns), it is important to seek legal advice as early as possible.
There are several steps that may need to be taken quickly:
- Consider Entering a Caveat - A caveat, which prevents a Grant of Probate from being issued, can be entered if there are real concerns about the validity of the Will. This can protect the estate assets whilst investigations take place.
- Obtain the Will File - The solicitor's file often contains valuable information, including attendance notes, correspondence and details of any discussions regarding mental capacity.
- Gather Evidence - Medical records, care home records, witness evidence and family correspondence can all help to establish what the deceased's condition was at the relevant time.
Could There Be Other Grounds for Challenging the Validity of the Will?
Possibly.
Concerns about dementia often arise alongside other validity considerations, including:
- Undue influence/coercion from another person
- Lack of knowledge and approval of the contents of the Will
- Fraud or forgery
- Problems with the way the Will was signed and witnessed
Key Points
- Will disputes involving dementia can be legally complex and emotionally draining.
- A diagnosis of dementia does not automatically mean a challenge will succeed. Equally, it does not mean a challenge should be ruled out.
- Each case turns on its own facts and the available evidence.
- Obtaining specialist advice at an early stage can help you understand your options and decide on the best way forward.
Concerned About a Loved One’s Will?
If you are concerned that a loved one may not have had the mental capacity to make or change their Will, getting advice early can help you understand your position and the options available to you.
Our experienced Will Disputes solicitors can review the circumstances, advise on the strength of a potential challenge and help you decide what to do next.
0161 941 4000
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Jennifer McGuinness
Partner
Jennifer has over 20 years of experience acting as a Contentious Probate solicitor. Jennifer has specialist expertise in Wills and probate disputes, inheritance claims, proprietary estoppel claims, trust of land claims, mutual Wills, and trust disputes.
About Jennifer McGuinness