Making a Will – how you can prevent it being challenged on the grounds of mental capacity

On behalf of Attwaters Jameson Hill posted in Wills on Tuesday, July 24th, 2018

It’s estimated that over 850,000 people are currently living with dementia in the UK, and this figure is expected to rise to over a million by 2025.

As you’d expect, the Alzheimer’s Society* website contains a lot of useful information about the disease and other forms of dementia. It explains that Alzheimer’s disease doesn’t just involve memory loss, it can also affect the way people think, feel and behave. It can lead to difficulties with concentration, and sufferers can experience problems planning and thinking things through.

Against this background, more people are challenging the validity of wills, on the grounds that they believe that the deceased did not have the right mental capacity at the time they made and signed their Will.

What is the test for mental capacity?

The test for mental capacity was established in the case of Banks v Goodfellow (1870), where it was shown that the person making the Will, the testator, must be able to:

  • understand the nature of his or her act, that they are making a Will, and the effect of doing so
  • understand the extent of the property that he or she is disposing of, i.e. they must know what assets they hold, (although not necessarily all the details)
  • understand who might expect to be named in their Will, and the claims that could arise against the estate as a result of either leaving them in or excluding them

In addition, the testator must not be suffering from a mental disorder which would limit their ability, or cause them to dispose of their property in a way that they wouldn’t have done if they had been of sound mind.

Conditions such as Alzheimer’s can therefore be potentially problematic, as the severity of the condition can vary markedly from day to day. The courts have a ‘golden rule’ that if someone has dementia or any other condition that might impair their decision-making, then it is advisable to get medical evidence that confirms that they have the mental capacity needed to make their Will.

How to prevent challenges to your Will

Don’t take the DIY route, speak to us. We will ensure that we take full notes at our meeting, and make specific mention of your mental capacity. If we think it is in your best interests, we may suggest that you seek a medical opinion about your mental capacity before proceeding. We’d also recommend that the Will is signed in our office to ensure your witnesses are independent and can identify any issues. If appropriate, we might also consider asking your Doctor to act as a witness.

If you intend for whatever reason to exclude someone from your Will, then it makes sense to outline the reasons behind your decision in what’s called a Letter of Wishes which should be kept alongside your Will. Being able to show the basis of your decisions can lessen the chances of a successful claim being mounted by anyone who feels they should have benefitted from your estate. Having a frank conversation with your family and outlining your plans, in the appropriate circumstances, is a good idea too.

Here to help

If you’d like some advice on making your Will or updating your existing one, do call us on 0330 221 8855 or contact us online
*We’re proud to be supporting the work of the Alzheimer’s Society, it’s our chosen charity of the year.

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