Each year, there are 9.9 million people diagnosed with dementia globally. That’s one person every three minutes, and this figure is set to rise, which is largely due to our ageing population.
Anyone that’s been impacted by dementia, whether they’ve experienced it themselves or know of someone who has, will understand the complexity of this disease. The effect dementia has on a person can fluctuate as the day progresses, with infections and medications often contributing to these disparities. It’s also not uncommon for an individual who’s suffering from dementia to clearly remember historical events, but struggle to recall day-to-day happenings. This in itself can cause uncertainties to cultivate as to the validity of an effected persons final wishes.
For a will to be considered legally valid, it must be determined that the deceased had testamentary capacity at the time their document was written and signed. When an individual who is suffering from dementia creates their last will and testament, whether or not they have the mental aptitude to do so can come into question.
If an eligible person believes that a testator didn’t fully comprehend the implications of their will, or that they were exploited and coerced into making certain decisions, they have the ability to contest the will. If a will contest of this nature is successful, the deceased individuals’ estate is administered as per the instructions in their previous valid will. If the testator didn’t express their testamentary wishes in a prior document, their assets are distributed in accordance with intestacy legislation.
What Will the Court Take into Account?
When an individual writes their will, it’s presumed that they had the mental capacity to do so. Thus, for a will to be deemed invalid, it must be established with certainty that the deceased did not possess this ability when drafting and confirming their testamentary wishes. If an eligible person fails to provide viable, proven reasoning as to why the testators’ will ought to be altered, it’s highly unlikely their case against the estate will successful.
For an individuals claim to be accepted by the Court, they will often need to address the following points:
- Whether the testator had a sound understanding of the decisions that were made and their implications;
- Whether the deceased had the mental capacity to remember this information;
- Whether the testator was capable of weighing up their different options prior to making a final decision;
- Whether the deceased communicated their decision.
If a claimant is unable to provide the Court with reliable evidence that supports such points, they will experience great difficulty when trying to prove their case.
There are numerous alternative arguments individuals will often propose; however, these are not always considered relevant. When determining whether or not a testator lacked mental capacity, the Court will not take into account:
- Their age or appearance at the time their final will and testament was executed;
- Certain conditions or behaviours they experienced from which unjustified assumptions can be drawn regarding their capacity.
The Types of Evidence Most Widely Accepted in Court
Solicitor’s File of Papers
When assessing whether an individual suffering from dementia had the mental capacity to write and sign a valid will, individuals will often look to the solicitor’s file of papers. By doing this, they can determine the circumstances under which the will was created, reasoning behind the testators’ decisions, and if the involved solicitor was made aware of any capacity concerns. If a solicitor is informed that the testator might lack testamentary capacity, it’s often suggested that they have a medical expert act as a witness when the will is finalised.
The testators’ medical record can help prosecutors determine the extent to which the deceased was impacted by dementia. For instance, they may look at when they were first diagnosed, as well as the results of any tests that had been completed to examine their mental capacity. This gives an indication of how severe the individual’s dementia was at certain times, so that their ability to understand, retain, weigh up and communicate information can be determined.
Numerous individuals may testify as to whether or not, in their experience on specific occasions, the testator had sufficient mental capacity. As mentioned, when a person is suffering from dementia, the severity of the disease can fluctuate, so different witness accounts may be conflicting. While relatives of the deceased are eligible to provide witness evidence, insights from independent individuals who have nothing to gain or lose from the cases’ outcome can be incredibly valuable.
If you believe you have a valid claim against an estate, or would like to discuss your prospective case with a professional, get in touch with our estate lawyers today. At Hentys, we have extensive experience resolving estate disputes and are dedicated to helping you achieve the outcome you deserve.
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