A diagnosis of dementia can significantly impact a person's ability to make decisions, including the important decision of drafting or altering a will.
If you are concerned that your loved one did not have the mental capacity to make a valid will, this article will guide you through the process of contesting a will on the grounds of lack of testamentary capacity, specifically when your loved one held a dementia diagnosis when they passed.
What does the law say about mental capacity in England and Wales?
In England and Wales, the law governing mental capacity is the Mental Capacity Act 2005. This Act presumes that an individual has the capacity to make decisions unless it can be proven otherwise. The burden of proof lies with the person challenging the will. For a will to be valid, the person making it must have had mental capacity at the time it was executed.
Under Section 3 (1) of the Mental Capacity Act, an individual is deemed to lack capacity if they are unable to:
- Understand the information relevant to the decision.
- Retain the information to make an informed decision.
- Weigh the information to make a decision.
- Communicate their decision.
When challenging a will on the grounds of lack of capacity, it is important to focus on the individual's capacity at the time the will was signed as capacity is time and decision specific. If there is clear evidence that the person did not meet the mental capacity requirements at that time, the will may be deemed invalid.
Understanding testamentary capacity and dementia
When a person creates a will, it is essential that they understand the nature and effect of their actions. This is known as testamentary capacity - a legal term that describes the mental ability required to make a valid will. Under English and Welsh law, an individual must be able to:
- Understand the nature of the act (making a will).
- Understand the extent of their estate and the consequences of distributing their assets.
- Understand the claims of others who might reasonably expect to benefit from the will.
- Have no mental disorder that affects their ability to make the will
A person who suffers from dementia may experience a loss of mental capacity, making it difficult for them to meet these requirements. Dementia, which includes conditions like Alzheimer's disease, can impair memory, reasoning, and decision-making abilities.
In cases where dementia is present, the validity of a will may be questioned. It is important to note that dementia does not automatically mean the individual lacks capacity - it depends on the person's mental state at the time the will was made. As dementia can fluctuate, there may be periods when the individual had the capacity to make decisions and other times when they did not.
Statistics on dementia in the UK
Dementia is becoming an increasingly prevalent condition in the UK. According to Alzheimer's Society, around 982,000 people in the UK are currently living with dementia, with the number expected to exceed 1.4 million by 2040.
As dementia progresses, it can lead to significant changes in a person's ability to understand and manage their personal affairs, including the making of a will. The risk of legal disputes over a person's estate increases, especially where the person may have had fluctuating mental capacity, or if family members or beneficiaries believe that the will does not reflect the person's true intentions.
Contesting a Will: what evidence is needed?
Contesting a will on the grounds that a person lacked the mental capacity to create or alter it can be a complex and challenging process. It is crucial to gather appropriate evidence to support the claim. The burden of proving a lack of testamentary capacity falls on the person contesting the will, and the courts will look for compelling evidence before making a decision.
Below are the key types of evidence typically needed to contest a will based on mental capacity:
Medical records
One of the first places to start is by reviewing the medical records of the individual. If the person had been diagnosed with dementia, the medical records will often document the progression of the diagnosis, the symptoms experienced, and any formal assessments of the individual's mental capacity.
These records can provide crucial evidence to establish when the individual's capacity began to decline. For example, if the testator (the person who made the will) was diagnosed with dementia prior to the creation or alteration of the will, their cognitive decline may be relevant to the claim. In some cases, the records may also indicate whether a doctor assessed the person's mental capacity at the time the will was made.
Medical practitioner notes will be important, especially if they contain details of the person's ability to make decisions and whether they were deemed mentally capable of managing their own affairs.
Solicitor's records
If a solicitor drafted the will, it is essential to examine the solicitor's records and attendance notes from meeting the client. Solicitors are legally obliged to ensure that the person making the will has the mental capacity to do so. This means they will typically take steps to confirm that the testator understands the implications of their decisions.
Solicitor's notes may include their observations of the person's mental state and whether there were any concerns raised about the person's capacity. When capacity is in question, a solicitor will likely request that a qualified professional conduct a mental capacity assessment before proceeding with the drafting of a will. If the solicitor's records show that the person exhibited signs of mental impairment or confusion, this may serve as evidence that the individual lacked capacity at the time the will was executed.
Witness statements
Witness statements from those who interacted with the testator during the creation of the will can provide valuable evidence. Family members, friends, or carers who were present when the will was made may be able to testify about the testator's mental capacity at that time. Individuals of this nature can provide first-hand accounts of any signs of confusion, forgetfulness, or inability to understand the nature of a will.
Witnesses may also be able to highlight inconsistencies or changes in the testator's wishes that could suggest they were not of sound mind when making the will.
Expert medical opinion
In many cases, an expert medical opinion is necessary to establish whether the testator had the mental capacity to make a valid will. A medical expert can assess whether the person was able to understand and make decisions about their estate at the time the will was made.
The expert will review the medical history, cognitive assessments, and other relevant documents to provide an opinion on the person's mental capacity at the relevant time. This report can be crucial in proving that the testator was unable to make an informed decision due to their diagnosis.
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.
