WHEN MEMORY CLOUDS INTENT
Challenging a will on the basis that the person who made it was suffering from dementia is possible, but it’s not as straightforward as you might think says Liam O’Neill, a personal law partner at LCF Law.
We speak to many people who suspect that dementia may have impaired their loved one’s decision-making abilities when writing a will. Whether the will stands largely hinges on whether the person had ‘testamentary capacity’ when it was prepared.
To have testamentary capacity, an individual must meet specific criteria, which can be challenging to evaluate, especially given dementia’s varied nature. Dementia encompasses over 200 sub-types, each affecting cognitive functions differently.
Claims are dealt with on a case-by-case basis by considering evidence in relation to the following:
• Did the person making the will understand what a will is and its effects?
• Were they able to understand what assets they had and were able to pass on to their intended beneficiaries?
• Did they understand who they ought to consider making provision for in the will, even if they decided not to?
• Did they have any disorder of the mind that may have influenced their decision to include or exclude a potential beneficiary?
The courts will balance the evidence, examining a wide range of factors including:
• The steps any solicitor or will writer took to assess testamentary capacity at the time the will was being prepared.
• Any medical evidence from the individual’s doctor from the time.
• The contents of the individual’s medical records.
• Whether the will is easy to understand and rational.
The likelihood of success in challenging a will is hard to gauge as most cases settle out of court to avoid high trial costs. Sometimes a settlement will be agreed even if a party considers that they have a very strong case. There is always a risk that a contested will may be judged to be valid despite there being strong evidence of confusion, irrational beliefs and/or memory problems.
Disputing a will can be distressing, especially when you’ve been excluded by a loved one. If you believe you have a legitimate claim, no matter what the circumstances, it’s essential not to be discouraged by the complexities.
LCF Law specialises in contested wills, often mediating disputes to avoid costly court proceedings. For more information, contact Liam O’Neill at 01943 885786 or loneill@lcf.co.uk.
To make or update a will and have a tree planted, please visit
https://bit.ly/one-tree-for-every-will.
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