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.