Court upholds woman’s second will despite her dementia

The High Court has declared that an 86-year-old woman’s will was valid even though she suffered from dementia at the time she made it.

The case involved a family dispute between two brothers and two sisters.

Their mother had died in 2015, aged 86. She had made a will in 2010 leaving her house to one of the brothers. However, she then made a second will in 2011 declaring that her estate should be shared equally between all four siblings.

The brother who had originally been left the house claimed that his mother was suffering from dementia when she made the 2011 will and so lacked testamentary capacity because she didn’t realise what she was doing.

He said the 2010 will, leaving him the house, should therefore stand.

The court heard evidence from the mother’s solicitor who had arranged both wills and he confirmed that he had no concerns regarding her mental capacity. He noted that her overriding intention had been to treat all her children equally.

She had left the brother her house in the 2010 will because she felt she had helped him less than the other siblings. However, on reflection, she changed her mind about this and so decided to create the 2011 will dividing everything equally.

The court upheld the 2011 will. It held that the evidence showed that the mother understood what she was doing. Her solicitor believed she had capacity, she had given clear instructions and had acted promptly in executing the draft will, and she had returned it with a covering letter that confirmed her understanding of what she had done.

Her dementia had not adversely affected her testamentary capacity when she executed the will.

Please contact Nigel Gibson-Birch or Lisa McBrearty if you would like more information about the issues raised in this article or any aspect of wills and probate.