The number of Wills being contested by the children of a deceased parent is going up. We see two main reasons for this: the increasing number of second marriages, and children of the first marriage being excluded from the Will; and the rise in the number of parents making a Will when they do not have the mental capacity to do so. There is a link here with the rise in dementia cases. Dementia sufferers can have good days and bad days, and their memory for things that happened years ago can be stronger than their recall of what happened 10 minutes beforehand. The swings in a dementia sufferer’s capacity poses obvious problems for us lawyers when assessing whether they had capacity when they made their Will.
If a person suffering from dementia does not understand the nature of making a Will and its implications, when it has been explained, then the document will not be valid and their Estate will be distributed in accordance with any previous valid Will or the Intestacy Rules. Because a person is assumed to have capacity at the time they execute their Will unless proven otherwise, any child contesting their parent’s Will must show their parent did not have capacity.
There is no English law which states that a parent must leave their Estate to their children and, accordingly, if the Will is rational and there is a valid explanation as to why a parent has excluded a child, it is often difficult to succeed with contesting the Will. The law states that for a Will to be valid, the following must apply:
• The parent must have known and understood they were making and executing a Will
• The parent ought to consider any claims against the Estate i.e. if a child is being excluded whether they may have a claim at a later date
• The parent must understand the extent of the property they are disposing
• The parent must not be subject to any disorder of the mind as shall “poison his affections, pervert his sense of right or prevent the exercise of his natural faculties” i.e. the dementia has not progressed to such a stage that it affects their mind
• The parent must have the mental capacity to make decisions which take into account the relevant property, persons and circumstances and to arrive at a “rational, fair and just Will”.
To address the above points, solicitors advising malcontent children will focus on:
• Whether the parent understood the information about the decisions to be made
• Whether the parent was able to retain that information in their mind
• Whether the parent was able to weigh up the information as part of the decision process and that they communicated their decision.
If, having gone through all the points listed above, there is still a concern the parent did not have capacity, the next steps are to collect evidence to support the case.
Solicitor’s File of Papers
It is important to note the instructions given by the parent to the solicitor, the reasons the Will was drafted and whether the solicitor was put on notice as regards any capacity issues. If a solicitor is on notice that there are issues relating to capacity, it is sensible for that solicitor to have the Will witnessed by a medical expert or a note on the file confirming that a medical practitioner has confirmed that the person had capacity. However, even if this step is not undertaken, it doesn’t mean the Will is invalid.
When looking at a parent who has executed a Will while suffering from dementia, a solicitor will review the medical records to determine:
• When the dementia was first diagnosed
• Any reference to the parent being confused
• Whether the parent had a mini mental state examination (MMSE test).
The MMSE test is a guide only: it does not examine in detail an individual’s ability to understand, retain, weigh up or communicate information directly related to a specific question.
In addition to family and friends, it is important to obtain evidence from individuals who have nothing to gain from the litigation and are seen as being “independent”.
Having obtained all the above evidence, it is normal practice to then instruct an appropriate medical expert who specialises in testamentary capacity and patients suffering from dementia. The evidence of a medical expert is often key to whether a child is successful in contesting a Will, so great care should be given to the instructions.
The above is for guidance purposes only. Contesting a Will where a parent has suffered from dementia can be extremely emotional, time-consuming and costly. It is therefore important to obtain legal advice at an early stage.