We sadly see lots of cases in which wills have been altered or changed after the person making the will was diagnosed with dementia. This article focuses on what steps can be undertaken to contest a will if the person making the will had dementia.
What is dementia ?
Dementia UK states that Dementia is a syndrome that associated with am ongoing decline of the brains functioning. There are different types of dementia but generally the most common are Alzheimers, Vascular dementia, Lewy Body dementia and fronotemporal dementia.
Main Symptoms of Dementia and the relevance to Making a will
Dementia effects people in many different ways, ranging from memory loss, mental sharpness, understanding, judgment, mood, movement, and difficulties with daily activities. These symptoms in turn can effect a persons planning or organising coupled with an ability to remember people, or certain events. The relevance of this, is that when making a will, the person making the will must:-
- Understand that they are making a will
- The actual effect of making a will
- The nature and effect of property ( assets ) they are disposing of
- The Claims on his/her estate of the property which is being disposed of and also those persons which are being excluded
If someone has been diagnosed with dementia, in our experience we find that wills are often materially different if changed after the diagnosis, simply because they often forget family members, their actual assets, as well as the significance of making a will and excluding people.
Contesting a will on grounds of dementia
The starting point in every case is to undertake a fact find. This starts with obtaining all the deceased’s wills, which will show their previous will making pattern. We will then obtain the solicitors will file, as well as the medical records as these will be crucial in providing the date as to when the diagnosis of dementia was actually made. Evidence from family members will also be obtained as this is helpful in providing an insight in to the type of person the testator was together with evidence as to how they would have wanted their estate to be distibuted.
Whilst this evidence is gathered it is always sensible to place a caveat on the estate which prevents probate from being issued.A Caveat lasts for 6 months and can be renewed.
Medical records when challenging a will
The relevance of the GP records and hospital notes is that they will provide contemporaneous evidence of the actual date the person making a will first attended their GP, together with any evidence of any tests undertaken by the GP to diagnose dementia. Such tests used by GPs include GPCOG ( General Practitioner Assessment of Cognition ) or MMSE ( Min-Mental State Examination) these tests will often ask about family and friends, concentration, short and long term memory as well as awareness of time and place eg. what is the date ? in other cases patients will be sent to memory clinics or for dementia brain scans.
Clearly, if the patient scored poorly on MMSE and then subsequently changes or alters a will this can be very good evidence in arguing the altered will is invalid on grounds of the deceased’s capacity.
The solicitors file when the will was drafted
If the person making the will was suffering from dementia or had any doubts as regards the persons capacity then, a capacity assessment should be undertaken this is known as the golden rule, and would involve a Psychiatrist undertaking an assessment of the person ability to make a will, in accordance with the appropriate legal test. Sadly we encounter many cases when this has not been undertaken. It is also important that the capacity test is undertaken by a medical expert who appreciates the legal test to make a will. Very often a simple letter from a GP stating the person had capacity without reference to the legal test is insufficient.
What is the process of challenging a will
Once all the evidence has been gathered a formal letter of claim will be drafted, this will set out the basis of the challenge against the will, the evidence in support together with the remedy sought. Eg. t whether an earlier will applies or the intestacy rules if there is no later will.
Inevitably, an exchange of correspondence relating to the testators capacity will follow the letter of claim with both parties arguing their respective cases. Sometimes, the instruction of an expert to provide a retrospective test for capacity is obtained which will involve the expert reviewing the medical notes and then providing an opinion. Very often mediation is used to resolve the dispute with court proceedings always regarded as the last option.
Our experience in handling will disputes involving capacity issues
We regularly act for Claimants when there are issues regarding the testators capacity particularly when there issues involve dementia, you can see some of the cases we have settled by clicking here. If you would like an initial discussion please contact Tim Murden on tim.murden@tmsolicitors .co.uk or by calling on 01482 429985.