Contesting a Will Due to Dementia
It has been recorded that there are now more than 944,000 people in the UK that are living with dementia and this number is expected to increase in the next few years. It is sadly predicted to reach over a million by 2025 and nearly 1.6 million by 2040. The effects of dementia can have on both the sufferer and their family can be truly devastating.
Sadly, the symptoms of dementia can include loss of memory and language which can drastically impair an individual’s ability to think or even make decisions clearly.
Unfortunately, due to the fluctuating nature of a dementia sufferer’s mental capacity, it has meant that a diagnosis of dementia has the potential to cause complications with the validity of such an individual’s Will.
This can result in inheritance disputes, especially if it is believed that the individual didn’t have the mental capacity needed to make a will at the time it was written.
What is ‘testamentary capacity’?
‘Testamentary capacity’ is the legal term used to describe a person’s ability to both legally and mentally make or alter a valid will.
If a person has dementia, in order to ensure their will is valid, their dementia must not affect their capacity to make decisions about their will.
The law explains that in order for a Will to be valid:
- The parent must have known what making a Will means and the effect it will have.
- The parent is able to understand the extent of their own property, including what they may owe or be owed in the future.
- The parent must be able to consider any potential claims that could be made against their estate, for example, understanding the repercussions if a child is being excluded from the Will.
Therefore, should you wish to contest a parent’s Will who has suffered from dementia, you must be able to prove that your parent didn’t have ‘testamentary capacity’ at the time the Will was written.
However, the courts introduced something called ‘The Golden Rule’.
What is the ‘The Golden Rule’?
Although there are no legal requirements that insist on the involvement of a doctor when making a Will- if you or a parent have dementia. It is strongly advised that you should, particularly because such wills are frequently contested and an individuals ‘testamentary capacity’ challenged.
For example, if it is decided that the person suffering from dementia did not have an understanding of the nature of the implications of making a Will and therefore, did not have testamentary capacity. Then the Will cannot be deemed valid and their estate could be distributed in accordance with either their last valid Will or be disputed through applying the rules of intestacy.
This is why the courts set out ‘The Golden Rule’.
The rule is designed to ensure that the last intentions of an individual who is older, of ill health or has a condition like dementia, are protected (and not contested).
‘The Golden Rule’ dictates that where a testator’s testamentary capacity could be challenged, the Will should be witnessed or approved by a medical practitioner.
Contesting a will on grounds of dementia
Step One: Getting legal advice
- Getting legal advice at the earliest stage in order to ensure you are in the best position to approach the case.
Step Two: Retrieve the deceased previous Wills
- When contesting a will where the testator suffered from dementia, the primary course of action is to retrieve all copies of the deceased’s previous wills. These will be used to establish a clearer picture of the true intentions of the deceased.
Step Three: Obtain the solicitor’s file and medical records
- Obtaining the solicitor’s file and medical records is another crucial, as these will provide the date of the dementia diagnosis.
- Medical records will also be crucial in establishing if the deceased had ‘testamentary capacity’ at the time the will was written.
Step Four: Evidence/testimonials
- Obtaining testimonials and evidence from family members is another key step in painting a picture of the testator’s character. This may also provide essential insight into how and between who the deceased intended their estate to be distributed.
Step Five: Letter of claim
- Once all evidence has been gathered, a formal letter of claim will be drafted by your solicitor, that will: set out the basis of the challenge against the will, present all the evidence gathered and state the outcome sought.
If any of the topics mentioned in this article apply to you or your family, IDR Law’s Claim Checker is a great place to start for further guidance.
The tool asks a series of questions covering the typical issues people face in an inheritance dispute situation. It provides detailed guidance to help users understand whether they have the right to dispute and then advises on the likelihood of success based on their situation.
