Contesting a will on the basis of dementia

We speak to many people who have lost a loved one who had dementia and who  believe the disease impacted their decision making when writing their will. Contesting a will on the basis that the person who made it was suffering from dementia is possible but it’s not as straightforward as you might think.

The validity of the will depends on the impact of the individual’s illness on their cognitive abilities at the time the will is prepared. To be able to make a will a person must possess ‘testamentary capacity,’ and this can sometimes be difficult to gauge given the variable nature of a disease like dementia. There are over 200 sub-types of dementia, many of which produce different symptoms and behavioural changes in individuals who are affected by the disease.

What factors are taken into account when assessing ‘testamentary capacity’?

Claims are dealt with on a case-by-case basis by considering evidence in relation to the following:

• Did the person making the will understand what a will is and its effects?
• Were they able to understand what assets they had and were able to pass on to their intended beneficiaries?
• Did they understand who they ought to consider making provision for in the will, even if they decided not to?
• Did they have any disorder of the mind that may have influenced their decision to include or exclude a potential beneficiary?

The courts will balance the evidence, examining a wide range of factors including:

• The steps any solicitor or will writer took to assess testamentary capacity at the time the will was being prepared;
• Any medical evidence from the individual’s doctor from the time;
• The contents of the individual’s medical records; and
• Whether the will is easy to understand and rational.

What is the success rate?

There are numerous reported cases but the vast majority of cases settle outside court, often because of the substantial costs that can be incurred in a case proceeding to trial. It is therefore difficult to assess how many challenges could be considered successful, especially as each case is unique.

In some cases, a settlement will be agreed even if a party considers that they have a very strong case. There is always a risk that a contested will may be judged to be valid despite there being strong evidence of confusion, irrational beliefs and/or memory problems.

For example, in Lloyd v Jones (2016) the late Mrs Harris’ will was upheld despite her often being confused about the time of day and believing that aliens were landing on her farm and Saddam Hussein had broken into her property. The court ruled that the existence of these problems did not mean Mrs Harris lacked testamentary capacity as she was still able meet the four requirements set out above.

We understand how upsetting it can be to be left out of a loved one’s will. If you believe you have a valid claim and the evidence to back it up, it’s important not to let the complexity put you off and to seek specialist advice.

Our specialist contentious probate solicitors have many years of experience between us dealing with contested wills and we regularly mediate disputes to avoid litigation and keep them outside court, saving our clients money and stress at an already difficult time.

How can Liam help you?

Liam O’Neill is a partner in our personal law team who has significant experience of dealing with disputes relating to the validity of wills. He is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS), reflecting his expertise in this area. He also has a regular wills and probate practice, giving him a strong overview of both sides.

If you would like assistance in contesting a will, he can guide you through all aspects of the investigation process. Working with the team and other specialists, he will consider all the evidence to maximise your chances of success, whatever that looks like for you.

Contact Liam on 01943 885 786 or by email at ku.oc1728470427.fcl@1728470427llien1728470427ol1728470427.

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