Disputes over wills of dementia sufferers can be avoided

The number of people suffering from illnesses such as dementia is on the rise and that has made the issue of testamentary capacity an ever growing area of concern for legal practitioners and clients alike.

13 September 2016

Practice Area: Private Client


Testamentary capacity is the term used to describe a person's legal and mental ability to make or alter a valid will, a concept also sometimes referred to as “sound mind and memory” or “disposing mind and memory”.

In the past few years we have seen a noticeable increase in the number of cases questioning patients’ ability to create a valid will and recent cases offer proof that people suffering from dementia, and their families, would be wise to seek professional legal advice soon after diagnosis as possible.

The Court in England and Wales have made a recent ruling showing that delusions and dementia do not necessarily mean that a will left by a dementia sufferer did not demonstrate she did not have testamentary capacity at the time of making her will – making the will legally binding.

The woman died in December 2010, leaving her daughter a legacy of £10,000 and the rest of her estate to her son and his wife. The remainder of the estate, however, included the family farm and was worth approximately £600,000.

The woman’s will was drawn up by her niece, without professional advice in February 2005, during which time she suffered from confusion, forgetfulness and aggression, along with peculiar delusions, resulting in a claim from the daughter that her mother did not have testamentary capacity at the time of making the will.

The Court heard that in 2004, the woman made calls to her daughter claiming to have been invaded by space creatures and that Saddam Hussein had poisoned her water supply.

However, the Court held that, while she clearly suffered with delusions and dementia, the evidence provided did not necessarily show that the woman was incapable of making her will. She did not, it ruled, fall below the threshold of testamentary capacity set out in Banks v Goodfellow and as such, the will was deemed to be valid.

This case highlights the importance of creating a valid will while a person is of sound mind, before such a time when mental capacity could be called into question, particularly if diagnosed with a progressive illness such as dementia.

It is also important to note that should you or a loved one be diagnosed with an illness such as dementia, it may still be possible to create a will and you should speak to a legal advisor at the earliest possible opportunity.

Our firm’s private client team is very experienced in advising in relation to such matters.  Should this be of interest to you, please contact Neil Bleakley, Fiona Wallace or Stephanie Johnston.