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The challenge with testamentary capacity and Dementia

Old man sat in a cafe

In a recent article shared by STEP, the issue of will writing, Dementia and testamentary capacity was brought to light. The case of Doris Harris highlighted the “grey area” that testamentary capacity can throw up and how Dementia can bring forth issues and arguments against wills.

In a similar case back in 2013, a judge ruled that, despite being written in the throes of Dementia, a will written and then changed by a Mrs Simon was valid, despite one of her offspring’s complaints that she had been coerced into changing certain aspects whilst being unwell and not necessarily mentally capable of making her own financial decisions.

Both of the above cases prove that arguing against testamentary capacity can be challenging, particularly if the client suffers with Dementia or similar mental health conditions.

What is testamentary capacity?

In common law tradition, testamentary capacity is the legal term to describe an individual’s legal and mental ability to make or alter a valid will. All adults are presumed to have the full ability to write a will; therefore, those who contest a will for lack of testamentary capacity must prove somehow that that person did indeed suffer from “mental unsoundness” that left them incapable of remembering family members and people who would otherwise be included in such a will.

In what instance would a lack of testamentary capacity be argued?

One of the most common causes of testamentary capacity being argued against is Dementia; an illness to the brain that can cause severe memory loss and difficulties in thinking. Should a family member or close friend believe that an individual didn’t have sufficient testamentary capacity when writing their will due to the debilitating effects of Dementia, they may argue that the will is invalid and should be disputed.

Is a will valid if written by someone with Dementia?

Just because someone might suffer with Dementia does not automatically mean they aren’t capable of writing a will. However, it is important to ensure that:

  • They understand the very nature of writing a will and its overall effects
  • They realise the extent of the property that they are giving away
  • They know exactly who they are giving their property to and are clear on exactly who is getting what

A legal professional, such as Flackwoods Solicitors, would help determine if a person if mentally able to complete a valid will and medical advice may be sought out if needs be. Support from family members and/or a carer is also vital to help make the whole process smooth and sensitive.

How can you contest a will due to lack of testamentary capacity?

Contesting a will can be complicated and unpleasant so should only be entered into on strong grounds. It’s lawful that a person making a will must be of “sound mind, memory and understanding”; all factors that Dementia and its subsequent symptoms can affect. If you have sufficient grounds to believe that a loved one or relative did not have full testamentary capacity at the time they wrote their final will, it’s important to take action and legal advice. You can contact the solicitors that originally wrote the will and even obtain medical records to help with your case. Supporting witnesses will help in a contest case too; whether they are siblings, partners or carers.

To find out more about Flackwoods Solicitors will writing services, call us today on 01403 738777 or email info@flackwoods.co.uk

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