In recent years the number of disappointed children contesting their parent’s Will has substantially increased. There are several reasons for the increase but the main ones are:
- The number of second marriages having increased and children of the first marriage being excluded; and
- The number of parents making a Will when they do not have the capacity to do so, has increased.
This article focuses on a specific capacity issue which is largely responsible for the increase in Wills being contested. The issue being parents that execute their last Will when they are suffering from dementia and the problems which it can cause.
There are currently 850,000 people in the United Kingdom who have been diagnosed with dementia and this number is set to rise to over 1,000,000 by 2025. It is predicted that this figure will increase to 2,000,000 people in the United Kingdom by 2051. These figures are staggering, with a person being diagnosed with dementia every 3 minutes. Dementia is largely associated with an ageing population and anybody who has witnessed this disease will know the impact it has upon the sufferer and the family.
A person suffering from dementia often suffers from fluctuating capacity and can have “good days” and “bad days”. It is not unusual for a sufferer even to be better in the morning than the afternoon or for their capacity to be effected by things such as infections and medications. Further, sufferers can sometimes have a “perfect” memory when discussing historical events but be unaware of daily events.
Due to the fluctuation in a dementia sufferer’s capacity, this can create difficulties for lawyers when assessing whether such a person had capacity when they executed 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, that Will will not be valid and their estate will be distributed in accordance with any previous valid Will or the Intestacy Rules.
The law – contesting a will where the parent was suffering from dementia
The law relating to whether somebody has the necessary capacity to execute a Will has been long established. A person is assumed to have capacity at the time they execute their Will unless proven otherwise. Accordingly, the onus is upon any child contesting their parent’s Will to show that 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.
In order to contest a parent’s Will, who has suffered from dementia, the law clearly states that for a Will to be valid, the following must apply, namely:
- The parent must have known and understood that 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 effects 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”.
In order to address the above points, solicitors advising disappointed children will focus upon:
- Whether the parent understood the information about the decisions to be made;
- Whether the parent was able to retain that information in their mind; and
- Whether the parent was able to weigh up the information as part of the decision process and that they communicated their decision.
If the above can be shown, it will be extremely difficult to contest the parent’s Last Will and Testament.
On numerous occasions disappointed children will raise points to try and support their contention that their parent did not have capacity, which case law has established are simply not relevant. For example, lack of capacity cannot be established merely by reference to:
- A parent’s age or appearance at the time the Will was executed; or
- A condition of theirs, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity.
If, having gone through all the points listed above, there is still a concern that the parent did not have capacity, steps should then be taken in order to collect evidence to support the case.
Best evidence to contest a will
Solicitor’s file of papers
The starting position to determine whether a parent suffering from dementia had capacity at the time of making the Will is to request a copy of the solicitor’s file of papers relating to the drafting of the Will. It is well established law, that a child is entitled to a copy of the file. When reviewing the file it is important to note the instructions given by the parent, the reasons why 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 is not indicative that the Will is invalid.
When looking at a parent who has executed a Will while suffering from dementia, a solicitor will look through the medical records to determine when the dementia was first diagnosed, any reference to the parent being confused and whether the parent has undertaken a mini mental state examination (“MMSE test”). The MMSE test examines a number of different areas such as orientation, recall and visual-spatial awareness and depending upon which questions the parent failed to answer correctly, the score will give an indication of which particular area of functioning is affected. The MMSE test is a guide only as it does not examine in detail an individual’s ability to understand, retain, weigh up or communicate information directly related to a specific question.
However, if a parent has scored 27 or more this would suggest that they have a normal cognition. Disputes often arise where a parent has a score in between 19 to 24 which is mild to moderate cognitive impairment. With such scores it is often not clear as to whether a parent did or did not have capacity. Scores of less than 18 often indicate that a person did not have capacity and certainly scores less than 9 would suggest severe cognitive impairment.
It is often the case with parents who have suffered from dementia that each party to the dispute often gets a substantial number of witnesses which will either state that the parent did or did not have capacity on a specific date. This is often as a result of the parent’s fluctuating capacity whereby on a specific date, one witness may give evidence that they had capacity at a certain time whilst another may state otherwise. Accordingly, 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 and therefore great care should be given to the instructions.
The above is for guidance purposes only and 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 in order to limit costs and to approach the case in the best manner possible, in order to try and seek an early resolution.