Making a Will? Take Legal Advice to Avoid Family Conflict

In a case which underlines the reasons why you should always get a solicitor to help you make your will, the opinion of an experienced lawyer as to the mental capacity of an elderly dementia sufferer who sought his advice was the decisive factor in establishing that she knew her own mind.

The woman was aged 85 when she made a new will in which she left her estate to her two sons in equal parts. In challenging the document's validity following her death, one of her sons argued that she lacked the mental capacity to execute a valid will and had neither known nor approved of its contents. He submitted that a previous will, under which he alone would have inherited his mother's home, was her last valid will and should be admitted to probate.

The son died before the dispute with his brother was resolved, but his children pursued the case as his heirs. It was submitted that the woman had exhibited clear signs of confusion and moderate to severe dementia around the time when the new will was signed. She was alleged to have been unable to write a sentence or to remember what day, or even what year, it was.

The children's arguments, however, failed to convince a judge, who upheld the validity of the new will. In ruling on their challenge to that decision, the Court of Appeal acknowledged that the woman had displayed some traits of mental impairment. However, there was evidence that her sons were equally loving and caring towards her and the contents of the will were rational.

The terms of the document could hardly have been simpler and the Court was satisfied that she had the mental capacity to understand them. The factor which tipped the balance, however, was that she had had a one-to-one meeting with and was advised by an expert solicitor before she signed the will, and he was clearly of the view that she had both understood and approved the bequests that she was making. The appeal was dismissed.