Contesting a will amid dementia concerns? This Yorkshire solicitor has important advice

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Challenging a will on the basis that the person who made it was suffering from dementia is possible but it’s not as straightforward as you might think says Liam O’Neill, a personal law partner at LCF Law.

We speak to many people who suspect that dementia may have impaired their loved one’s decision-making abilities when writing a will. Whether the will stands largely hinges on whether the person had ‘testamentary capacity’ when it was prepared.

To have testamentary capacity, an individual must meet specific criteria, which can be challenging to evaluate, especially given dementia's varied nature. Dementia encompasses over 200 sub-types, each affecting cognitive functions differently.

Claims are dealt with on a case-by-case basis by considering evidence in relation to the following: 

The courts will balance the evidence, examining a wide range of factors including:

• The steps any solicitor or will writer took to assess testamentary capacity at the time the will was being prepared;
  
• Any medical evidence from the individual’s doctor from the time.
  
• The contents of the individual’s medical records.
  
• Whether the will is easy to understand and rational. 

The likelihood of success in challenging a will is hard to gauge as most cases settle out of court to avoid high trial costs.

Sometimes a settlement will be agreed even if a party considers that they have a very strong case. There is always a risk that a contested will may be judged to be valid despite there being strong evidence of confusion, irrational beliefs and/or memory problems.

For example, in Lloyd v Jones (2016) the late Mrs Harris’ will was upheld despite her often being confused about the time of day and believing that aliens were landing on her farm and Saddam Hussein had broken into her property.

The court ruled that the existence of these problems did not mean Mrs Harris lacked testamentary capacity as she was still able meet the four requirements set out above.

Disputing a will can be distressing, especially when you’ve been excluded by a loved one. If you believe you have a legitimate claim, it’s essential not to be discouraged by the complexities. 

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This story is sponsored by LCF Law.

LCF Law specialises in contested wills, often mediating disputes to avoid costly court proceedings. 

For more information, contact Liam O’Neill at 01943 885 786 or loneill@lcf.co.uk.