Lacking mental capacity, a sibling dispute


We recently assisted a client who we will refer to as “Stella” for the purposes of this piece in her mother’s estate “Mary Brown”.

Stella’s father passed away and his estate passed to her mother Mary. The couple had mirror wills leaving everything to each other and then on to their two children, Stella and her brother “Martin” equally.


Lacking mental capacity


Sadly after the death of Stella’s father, her mother Mary who was elderly began struggling to live alone and suffered serious cognitive decline over a number of years. She had paranoid and delusional tendencies and was diagnosed with late onset dementia in Alzhemiers one year before she passed away.

When she died, Stella became aware that her mother had changed her will approximately one year before her death and only a few weeks before her diagnosis with dementia. The new will left the majority of the estate to Martin and very little to Stella. Stella sought legal advice as she was concerned that her mother was incapable of understanding what she had done when she changed her will due to her capacity issues.

Mary’s medical records were obtained as well as police and safeguarding records which all indicated for a number of years before she changed her will, she was in serious cognitive decline. The solicitors file of papers was also requested (who had prepared the new will) and it transpired that Mary had attended the solicitor with her son Martin and his wife. She was not seen alone and the solicitor recorded she appeared anxious and agitated.

The solicitor did not record having carried out any mental capacity assessment of Mary at either appointment to give instructions or sign her will. Martin nor his wife appeared to speak with the solicitor about the known issues Mary had in terms of capacity. The attendance notes were vague and gave no reason why Mary wanted to change her Will. It appears the solicitor did not go into the whys or what fors with her.


Under the influence


The evidence available in the medical records and the fact the solicitor failed to see Mary on her own was strong. It appeared that Mary lacked mental capacity and was influenced to change her will by her son and his wife. A letter of claim was prepared and all evidence presented to the executors (Martin and his wife). Upon taking legal advice and through negotiation and correspondence, it was agreed the will was invalid as there was no evidence put forward to suggest or prove Mary had capacity.

It was agreed the terms of the previous will would apply and that the estate should be divided equally between Stella and Martin, as was the case before.

The parties however each incurred legal costs in having to resolve the issues which could have been avoided if Mary had been properly assessed when making her will. It is likely that if she was seen alone, she would have struggled to give instructions and one would hope the solicitor would realise she was not fit to change her will due to mental capacity issues.


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