The level of mental capacity required to make a Will
varies depending on the complexity of the estate and instructions
given. The greater the complexity, the higher the testamentary
capacity required. The Court will do its upmost to uphold the
wishes of the deceased but there are measures that can be taken
when the Will is being prepared and executed which can
significantly reduce the possibility of the Will being challenged.
Lorraine Burke from our Will Disputes Team looks at this in further
detail.
In the recent decision of Simon v Byford and others
[2013], the Will of an elderly lady with mild to moderate
dementia was upheld. She executed a straightforward Will in which
everyone you would expect to benefit received equal and substantial
inheritances.
She was reminded on one of her “good days” that her
earlier Will favoured one of her children in particular, who was
not present. That same day she decided to execute a Deed of Gift
(held to be invalid) and a Will. A friend of the family who was a
legal secretary was present and drafted the documents based on Mrs
Simon’s instructions with some input from other family
members who were also present. The recurring message from Mrs Simon
was that she wanted to treat her children equally and for this to
be reflected in the new Will.
As two of the beneficiaries were present while instructions were
taken, the court had to consider whether Mrs Simon knew and
approved of the contents of the Will. It found that she did.
The judge favoured the evidence of the witnesses who were present
at the time over the inconclusive evidence of the experts who had
not met Mrs Simon in her lifetime. She also did not want to wait to
see the solicitor but said that she wanted it dealt with that
evening.
Despite her mild to moderate dementia, the court upheld her Will.
It found that as she was leaving everything to her children in
equal shares, it was not necessary for her to understand the exact
details of the previous Will that she revoked nor did she need a
precise knowledge of the extent of her estate. In this instance,
she could have asked to see the earlier Will but did not. Had she
read it, she would have understood it.
The court recognises an elderly person’s right, where
possible, to leave their estate as they choose, even if their
mental faculties have declined considerably.
We have seen a notable increase in Will Dispute cases in recent
years. However, there are ways to minimise the risk of this type of
litigation. Where an elderly person with mental health issues
wishes to execute a Will, it is best to see a solicitor, as
appropriate steps at this stage can significantly reduce the risk
of someone bringing a claim against the estate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.