In this article, Martin Oliver, Partner in our Contentious Probate team explains the issues surrounding dementia and the problems that can arise for those drafting wills.
According to The Alzheimer's society, there are over 900,000 people currently living with dementia with the statistics set to rise further in the next 10 years. Often, solicitors are faced with the question of whether a will is valid due to the testator (the person who wrote the will) is suffering from dementia. This is not necessarily true, as there is a sliding scale with those suffering - just because someone has dementia, it does not mean that their will is invalid.
How do you determine if someone has capacity to write a will?
You need to go back to basics in relation to the law. The historic case of Banks v Goodfellow is an established test that determines whether the individual has the capacity to make a will.
The test is set out in the following areas:
- The nature of the act and its effects
- Does the testator understand them?
- Does the testator understand the extent of their property and what they are disposing of?
- Does the testator understand any of the claims that could be made against the estate?
- Is the testator suffering from an insane delusion or some other mental illness that will impact their judgment?
When answering these questions, a solicitor will automatically explain on the first occasion that evidence must be collected to back up these claims.
What are the problems that arise when someone has dementia?
The problems that can arise when someone is suffering from dementia is that their capacity can fluctuate day-to-day with various witnesses declaring whether they do or don't have capacity. It is difficult to determine where the person 'is at' when suffering from dementia.
The starting point is to look at a Mini Mental State Evaluation (MMSE Test). This is scored out of 30 and will ask basic questions such as "who is the Prime Minister today?" along with asking the same thing shortly after to see if they provide the same answer or can recall what they said. If someone is scoring 27 to 30, it suggests that they have have capacity (given some exceptions). A score of 24 or above is also deemed as having capacity. For those who score between 18 and 24, this can be a 'grey area' for whether someone has capacity. As this test is on a sliding scale, their score can fluctuate so it is best to look at it over a longer period of time to see if their score goes down. No legal cases, from Martin's experience, with a score under 18 has ever confirmed that someone has capacity.
What happens when there is a will dispute?
A solicitor will need to gather evidence such as the solicitor or will writer's file and see if there's any reference to confusion as well as gathering a copy of their attendance notes and the instructions that were given. A copy of medical records will be obtained, and as a disappointed beneficiary you are entitled to get a copy. Another other documents that would indicate some sort of confusion can also assist. Finally, talking to family and friends can help to understand their behaviour.
Once the evidence has been collected, there are experts available that will provide a retrospective evaluation on whether someone had capacity. If they deem that the testator did not have capacity, a claim can then be considered.
Conclusion
This is a specialist area so the advice in this article is a broad overview, there are specifics that needs to be considered. It is always best to speak to a professional to seek legal help.
Click here to find out more about our Contentious Probate team.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
