Dementia sufferer was aware of his actions so his will was valid

An elderly farmer who suffered from dementia understood what he was doing when he changed his will shortly before his death and so the alterations should be accepted as representing his true wishes.

David Tew, Associate Solicitor in our Will Claims team reports on this recent case.

That was the decision of the Court of Appeal in a case involving a dispute between members of the same family.

In 2005 the farmer executed a will leaving shares in a family company to his daughter and younger son equally, and the farm (Yr Efail ) to his older son.

In March 2016, after the older son’s death, he instructed a solicitor regarding a new will in which he left Yr Efail to the younger son and created a lifetime trust for his son’s widow. He left another property to his daughter and his residuary estate to his grandchildren.

The solicitor made a detailed attendance note referring to the existence of the 2005 will and to the farmer’s desire to make a new will because of his son’s death. It was recorded that he was aware of the importance of checking the whereabouts of title deeds and of correctly describing his properties in the new will.

The solicitor noted concerns about the farmer’s capacity and instructed his GP regarding a medical certificate. The GP recorded that the farmer was aware of the purpose of the visit and did not appear to be confused, and that he had a clear understanding of the nature of the will and the extent of his property.

The will was executed on 7 July 2016. On 19 July the GP referred the farmer to a community psychiatric nurse for support with dementia. He died in May 2017. The son applied for probate but was challenged by the daughter and the widow.

Psychiatric evidence was adduced from the medical records. The GP gave evidence that the changes in the 2016 will were “far more complex” than he had first thought and that he would have asked the farmer further questions about the gift of Yr Efail had he appreciated that at the time.

The judge at the first hearing held that the 2016 will was invalid for lack of testamentary capacity and admitted the 2005 will to probate.

The Court of Appeal overturned that decision.

It held that the relevant questions were whether the farmer understood the nature of the act of making the 2016 will and its effect. Where the will was duly executed and appeared rational on its face, the court would presume capacity unless real doubt was raised.

Although expert evidence from the GP might be of assistance, the issue of testamentary capacity was one for the court.

It was also a principle in law that the courts should not too readily upset a will drafted by an experienced lawyer. In this case, the will was explicable and rational, and was drawn up by an independent lawyer who was aware of the relevant surrounding circumstances, had met the farmer and had read the draft to him and considered that he had testamentary capacity.

In addition, the 2016 will was no more complex than its predecessor. Nor was there any evidence that the farmer had lacked the capacity to appreciate the moral claims upon him from members of his family.

If you would like more information about the issues raised in this article or any aspect of contentious probate, please contact our specialist Will Claims team on 01228 516666 or click here to send an email.