Contesting a Will – Dementia, Alzheimer’s and Insufficient Mental Capacity

Over 498,300 people in England have a formal diagnosis of dementia in 2024. This is an all-time high and is projected to continue to rise, as the UK population ages.

The effects of dementia can have on both the sufferer and their family can be truly devastating. 

Sadly, the symptoms of dementia can include a loss of one’s language skills and memory. These symptoms can drastically impair an individual’s ability to think clearly and consequently impairs their capacity to make important decisions. 

Unfortunately, due to the fluctuating nature of a dementia sufferer’s mental aptitude, a diagnosis of dementia has the potential to cause complications regarding the validity of such an individual’s Will.

This can result in inheritance disputes, especially if it is alleged that the individual did not have the mental capacity needed to make or approve a Will at the time it was written. 

What is ‘testamentary capacity’?

‘Testamentary capacity’ is the legal term used to describe a person’s ability to legally and mentally make, or alter, a valid Will. The person who the Will belongs to is called the testator.

If a person has been diagnosed with dementia, to ensure their Will is valid, their dementia must not affect their capacity to understand the terms of their Will or make decisions about their Will.

The law explains that in order for a testator’s Will to be valid (According to the Banks v Goodfellow precedent):

• The testator must comprehend what making a Will means, and the effect it Will have. 
• The testator is able to understand the extent of their own property, including what they may owe, or be owed in the future.
• The testator must be able to consider any potential claims that could be made against their estate, for example, understanding the repercussions if a direct descendent (e.g. a child of the testator) is excluded from the Will.
• The testator must have no disorder of the mind or ‘insane delusion’ that would ‘poison their affections’ towards a potential beneficiary.

The above criteria are commonly understood as the requirements for testamentary capacity. Ideally, the testator should also be able to recognise the identity of their Will’s beneficiaries.

Therefore, should you wish to contest the validity of a Will signed by someone who has suffered from dementia, you must be able to prove that they did not have ‘testamentary capacity’ at the time the Will was written. The burden of proof for overturning a Will on the grounds of insufficient testamentary capacity is relatively high, however.

It is important, now, to mention ‘The Golden Rule.’ The Golden Rule is a legal principle that emerged from the case of Kenward v Adams, 1975.

What is the ‘The Golden Rule’?

‘The Golden Rule’ dictates that where a testator’s testamentary capacity could be challenged, the Will should be witnessed or approved by a medical practitioner. 

There are no legal requirements that insist on the involvement of a doctor when making one’s Will. Nevertheless, if the testator has dementia, it is strongly advised that they should involve a medical professional. Wills written by those suffering from mental illnesses like dementia are more frequently contested; the individual’s ‘testamentary capacity’ is more likely to be challenged. 

An example: if it is decided that the person suffering from dementia did not understand the implications of making a Will – and thus did not have testamentary capacity – then their Will cannot be deemed valid. Their estate would instead be distributed in accordance with either their last valid Will or (if no previous Will exists) in accordance with the rules of intestacy. 

The Golden Rule is designed to ensure that the last intentions of an individual who is elderly, is of ill health, or has a condition like dementia, are protected (and not contested). 

Contesting a Will written by someone who may have not had sufficient mental capacity: a step-by-step outline.

Step One: Seek legal advice.

• Getting legal advice at the earliest stage in order to ensure you are in the best position to approach the case.

Step Two: Retrieve the deceased’s previous Wills.

• When contesting a Will where the testator suffered from dementia, the primary course of action is to retrieve all copies of the deceased’s previous Wills, by looking through paperwork, by contacting firms, or through the National Will Register’s Will Search service.
• These will be used to establish a clearer picture of the true intentions of the deceased. This way, lawyers can identify any drastic differences between Wills written at different times.
• This can be done by getting in contact with any will-writing firm or solicitor who has handled any previous Wills (e.g. your family solicitor).

Step Three: Obtain the solicitor’s file (Larke v Nugus request) and the Deceased’s medical records.

• Obtaining the solicitor’s file and medical records is crucial, as these can provide the date of the dementia diagnosis.
• Medical records are pivotal in understanding if gauging whether the deceased had ‘testamentary capacity’ at the time the Will was written. 
• Although having dementia will not definitively show that a testator lacked capacity to execute their will, medical records are a useful source of evidence to support a lack of capacity – under legal guidelines.

Step Four: Evidence/testimonials

• Obtaining testimonials and evidence from family members, carers and friends is another key step in painting a picture of the testator’s character. This may also provide essential insight into how – and between whom – the deceased truly intended their estate to be  distributed. 

Step Five: Letter of Claim

• Once all evidence has been gathered, a formal Letter of Claim can be drafted by your solicitor.
• The letter would set out the basis of the challenge against the Will (e.g. insufficient cognitive capacity to give consent/approval to a Will in their name), present all the evidence gathered and state the outcome sought (e.g. an overturn of the Will, or a change in provision).

Unhappy with your Inheritance? – IDR Law

IDR Law specialise in helping families reach a resolution during these difficult and sensitive disputes. Every day, IDR Law deals with a full spectrum of disputes relating to Inheritance, Wills and Probate. If you are unhappy with your share of inheritance, or there is a disagreement between beneficiaries and executors, we can provide the expertise and experience to help you reach a resolution.

For a free non obligation call with us through our ‘request a call back’ form, and one of our team will be in touch to discuss the situation you find yourself in, and advise on next steps.