Hughes v Pritchard

Making a will following a diagnosis of dementia and avoiding validity challenges

It is sometimes assumed that a will cannot be valid if it was made by a person who suffers from dementia. However, many people retain capacity to make a will for a significant period following their diagnosis.

Tests for capacity are task specific. For example, someone may have capacity to make a will, but not to make a decision concerning a complex financial investment. An individual’s capacity may also fluctuate from one day to the next, depending on the nature of the condition they suffer from.

The test for whether someone has capacity to make a will, as set out in the case of Banks v Goodfellow, is whether the testator:

  1. understands the nature of making a will;
  2. the extent of the property which he is disposing;
  3. the claims to which he ought to give effect; and
  4. he is not affected by any disorder of the mind which perverts his sense of right or the exercise of his natural faculties in disposing of his property.

While it may not be conclusive as to the validity of a will if not followed, the golden rule as set out in the case of Kenward v Adams is that solicitors preparing a will for an older or seriously ill testator should arrange for it to be witnessed by a medical practitioner, who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.

Recent will validity challenges involving testators suffering from dementia

Biria v Biria

In the case of Biria v Biria [2024] EWHC 121 (Ch), the testator, Mr Biria, was 95 when he executed a will in May 2020. At the time, proceedings were ongoing in the Court of Protection in relation to the question of whether he had capacity to manage his affairs.

The will had been drafted by an American attorney who claimed it was prepared “long before” on Mr Biria’s instructions. It was later executed at the offices of a notary but was not witnessed by a medical practitioner.

In August 2020, Mr Biria was assessed by Dr Barker as part of Court of Protection proceedings, and found to lack capacity to manage his property and financial affairs as a result of dementia. The validity of Mr Biria’s will was later challenged by his oldest son.

Expert evidence was provided from Dr Barker who concluded, based on his past dealings with Mr Biria, and his medical records, that he would not have had capacity to make a will when it was executed, as he would have been unable either to understand the extent of his estate, or the moral claims of potential beneficiaries.

It was noted by the court that the golden rule had not been followed. When Dr Barker had interviewed Mr Biria, he spoke simple English, and Dr Barker was told that Mr Biria’s first languages were Persian and Arabic. When later informed that Mr Biria had for many years been a fluent English speaker, Dr Barker confirmed that the loss of the ability to speak English fluently was supportive of the finding of dementia.

The court was convinced by the evidence, and concluded that the will was not valid based on Mr Biria’s lack of capacity, want of knowledge and approval, and undue influence.

Leonard v Leonard

In the case of Leonard & Ors v Leonard & Ors [2024] EWHC 321 (Ch), the testator, Dr Leonard, made a will in 2015 when he was 83. The validity of the 2015 will was later challenged by Dr Leonard’s children from his first marriage.

Various drafts of the will were prepared over a period of two years by a chartered tax adviser who had not spoken to or seen Dr Leonard for nearly a year before the will was signed. The will was executed by Dr Leonard at home without any professional supervision.

Dr Leonard was said to have been showing signs of dementia from around 2011, but in 2016 received a formal diagnosis of vascular dementia. Opposing expert evidence, in the form of retrospective assessments of Dr Leonard’s capacity to make the will, was provide by both sides.

It was noted that the most important evidence in cases of this nature is often that of persons present at the time of making the will, but the court had no assistance on that aspect in this case, as the witnesses had no real recollection of what happened.

The will writer faced some criticism for: failing to follow the golden rule; her lack of awareness of the need for caution when dealing with an elderly testator; failing to pick up on warning signs that Dr Leonard was struggling to understand a draft provided; failing to arrange to meet him when she received changed instructions, and failing to notice that communication was largely coming from Dr Leonard’s wife.

Ultimately, the court concluded that Dr Leonard did not have capacity to make the will, as he was incapable of understanding the nature and effects of his will, and his dementia influenced his decisions and prevented the exercise of his natural faculties.

Assisting a testator suffering from dementia to make a valid will

It is clear that additional caution should be exercised when assisting someone with dementia to make a will. Measures may need to be put in place to assist them, and to provide evidence that they had capacity at the time, to avoid later disputes. Some steps that may be considered are as follows:

  • Arranging meetings in person at a time that suits the testator e.g. in the morning if they are more alert when they first wake up, and documenting the instructions;
  • If their capacity fluctuates, being alive to that and rearranging a meeting if they’re having a bad day;
  • Ensuring that the will is prepared and executed promptly once instructions have been provided;
  • Simplifying the will where possible to make it easier to understand;
  • Discussing the reasons for any changes to instructions;
  • If English is not the testator’s first language, arrange for an interpreter to attend meetings;
  • Considering other medical issues that may make it more difficult to understand the will, and what is being discussed, e.g. hearing or vision problems, and how they may be addressed;
  • Following the golden rule as set out above;
  • Potentially recording the meeting where the final will is approved by the testator and executed.

What if capacity to make a will has been lost?

If someone suffering from dementia is assessed as lacking the capacity to make a will, then it is possible for an application to be made to the Court of Protection for a statutory will to be made on their behalf. This can even be done if a valid will was made previously, but it is no longer in the testator’s best interests.

Applications for statutory wills are becoming increasingly common, partly due to the desire to avoid disputes after the person has passed away. An application will only be granted by the court if it is considered to be in the person’s best interests. The person lacking capacity is encouraged to participate to the extent they can, and their past and present wishes and feelings, beliefs, values, and other factors they are likely to consider if they had capacity, are taken into account.

It is clear that options for future planning are available for those diagnosed with dementia, but care must be taken to ensure that a valid will is made and to avoid future disputes

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