Woman’s will upheld in spite of her dementia

The High Court has upheld a 91-year-old woman’s will even though she was suffering from dementia at the time it was made.

The law requires that when making a will, a person must have testamentary capacity – that is, they must fully understand what they are doing and the consequences of their decisions.

However, in giving his ruling in this case, the judge pointed out that the law also upholds the right of elderly people to leave their property as they choose, even if their mental faculties have declined considerably.

The case involved a family of four brothers and sisters. Their mother had made a will in 1996 that left £20,000 to her assistant, a flat to one her sons and the remainder of her estate to be divided equally between her four children.

However, at her 88^th birthday party, she made a new will. Her assistant was still left the same £20,000, but the rest of her assets were to be divided equally between her three remaining children and the family of her other child who had since passed away.

The son who had previously been left a flat by his mother was not present at the party when she made the new will. Her other two children were.

The son claimed that his two siblings had pressured his mother to change her will, knowing that her dementia left her in a vulnerable state.

The two siblings denied this and argued that it was their mother who initiated the new will, and she was in full possession of her faculties at the time.

The court ruled that the new will was valid because when the mother made it, she was capable of understanding what she was doing.

She was having a ‘good day’ with regards to her dementia and was fully capable of the decisions she was making. She was aware that one of her children had died, and so left his share to his family. Her assistant was left the same amount as previously stated.

It was also not surprising that the mother wished to share her estate equally between her children.

Please contact Nigel Gibson-Birch or Josie Birnie if you would like more information about writing a will or inheritance issues.