In the UK some 800,000 people are living with dementia; over 64,000 in our region.  Rising property prices, the baby boom and the wealth of the over 50’s have led to an increase in inheritance disputes where it is argued that the person who has made a will did not have the mental capacity to do so, usually as a result of dementia.

Inheritance disputes are often expensive to litigate but when the stakes are high, two recent cases illustrate the lengths that family members will go to, when arguing over a will.

In a recent case Constance Simon, a mother of 4 made her last will at her 88^th birthday party in 2005.  She died in January 2009 at the age of 91 and left 3 surviving adult children, her eldest son Jonathan, another son Robert and his twin sister Hilary.  Her assets at the time of her death included a house in St John’s Wood, North West London valued at the time at £1.7 million and a flat in Westcliffe on Sea, Essex worth £262,500.

Her will was challenged by Robert who claimed that his siblings had coerced his mother into changing her will (which originally gave him most of the estate because he had helped run the family business).

From about 2000, before the onset of serious mental decline, Mrs Simon lived with Robert and his wife Michelle.  Prior to that in 1996 she had made a will in his favour, but in December 2005 at her 88^th birthday party she made her final will.  Robert did not attend that birthday party – Hilary and Jonathan were there and the will was prepared and executed without Mrs Simon being medically examined and without a solicitor being present.

In court Robert accused his siblings of “sinister and reprehensible” behaviour.  The judge said that as Hilary and Jonathan had benefited from the changes at the expense of Robert he had been bound to approach the issue of knowledge of the new will and its approval with care, but he did find the evidence of Hilary and Jonathan and other witnesses to be “truthful and substantially accurate”. He rejected the accusations of sinister behaviour in finding that Mrs Simon knew that her existing will did not favour her children and their families equally and wished to execute a will that did so.

Robert’s argument was that the will was invalid because at the time that it was made his mother was suffering from mild to moderate dementia and therefore lacked mental capacity to make a valid will.  Interestingly the judge agreed that Mrs Simon “was not capable of remembering her reasons for preferring Robert in her previous will, or its terms” but he went on to find that to rule that Mrs Simon did not have testamentary capacity “would be inconsistent with the authorities that support the right of elderly people to make a will disposing of their property as they see fit, even if their mental faculties are far from being at their peak”.

The judge went on to say that there “must be many legal cases in which people could no longer remember all the circumstances relevant to the division of their property between the people they wish to benefit”.  His view was that there might be cases where it may be necessary for a testator to understand the different provisions of an earlier will but “this is not such a case”.

Judgement was handed down in this case on 29^th May 2013.  Permission to appeal was refused.

Another case which is still ongoing could turn on whether a senior judge finds that Daphne Jeffrey was well enough to enjoy a trip to Wimbledon in July 2007 to see Venus Williams win her 4^th title at the Wimbledon women’s final.

The bitter dispute is between Mrs Jeffrey’s two sons Andrew 50 and Nick 54.

Nick, who inherited most of his mother’s estate says that she remained “a delightful old lady” and a “shrewd business woman” right up to the end of her life.  His case is that his mother made a rational decision to cut his brother out of her will after she fell out with him in an argument about the family insurance broking business that they ran together.

Andrew claims that his mother was addicted to prescription drugs, had mental health problems and was very unwell when she wrote him out of her final will two days before the visit to Wimbledon.

Daphne Jeffery died in 2010 aged 77 and left an estate worth approximately £500,000.

Nick Jeffrey’s wife Nicola gave evidence supporting her husband and said that on the day of the trip to the Wimbledon championships her mother in law, who was a keen tennis fan, was in good physical and mental health; “she drove us to Wimbledon and had no problems driving.  We met her husband David outside the centre court … she was fine.  We were there the whole day.  I had no concerns about her at all.  It was a very hot day and our seats were in direct sunlight and we sat there the whole day”.

Andrew Jeffrey claimed that his mother had in fact shown signs of unusual debilitation that day which cast doubt on her soundness of mind when she signed her new will.  He is seeking a declaration that his mother’s will was invalid and that she died intestate; if he is successful then his mother’s estate will be split equally between himself and his older brother.

Dementia is not always easily or quickly diagnosed and in a report recently published by the Alzheimer’s Society, Dementia 2013, a key finding was that only 44% of people with dementia in England, Wales and Northern Ireland have a diagnosis.  This has increased just 3% from last year.

When someone makes a will, if they instruct a solicitor then that solicitor should carry out a capacity assessment to determine whether the person has testamentary capacity – that is, sufficient mental capacity to make a will.  The test is set down in the case of Banks v Goodfellow,  a case from 1870 which held that it was essential that “a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”.

This case continues to be relevant even since the passing of the Mental Capacity Act 2005.

The courts are, generally speaking, very reluctant to set aside a will – it is the last known expressed wishes of the deceased and a judge must be satisfied by the evidence on the balance of probability (ie be more than 50% sure that the will is not valid, before it will be set aside.

Very few cases are fought out at trial and each case turns on its own facts so it’s vital not to read too much into case law.  That said it is likely that in the future judges and solicitors will increasingly be presented with cases where it will be argued that the person making a will lacked the mental capacity to do so.  A diagnosis of dementia does not necessary mean that an individual lacks the capacity to make a will.  But it is vital that to protect the will as far as possible, steps should be taken if there is any doubt about capacity including a medical assessment and will advice from a solicitor accredited by Solicitors for the Elderly.

Those seeking to challenge a will after the death of a loved one should consider very carefully what evidence there is in support of the claim and seek advice from a specialist in contentious probate law.

Sarah Young is a Partner with Ridley & Hall solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421 or mobile 07860 165850.