Expert Reacts As Man’s Legal Challenge Is Rejected

By Rob Dixon

A businessman’s failed legal bid to have the terms of his mother’s will declared invalid in the High Court has put the issue of capacity and the difficulties which can emerge in relation to it in the spotlight, according to a will disputes expert.

Robert Simon was contesting the will of his mother Constance which was made at an 88th birthday party in December 2005, claiming that his siblings encouraged his mother – whose memory was failing at the time – to amend plans in another will which stated he would get most of her estate.

However, Judge Nicholas Strauss ruled that the will of Mrs Simon, who died aged 91 in 2009, could not be ruled invalid. He said this was because the law “upholds the right of elderly people to leave their property as they choose, even if their mental faculties have declined considerably”.

He added this must “include many cases in which they can no longer remember all circumstances relevant to the division of their property” and ruled that making a qualification of testamentary capacity would be “inconsistent with the case law”.

Irwin Mitchell’s Will, Trust and Estate Disputes team specialises in acting for people who are looking to contest a will prepared by their loved ones, including those making claims related to capacity.

Adam Draper, a Partner and expert in will disputes at the national law firm, said: “This is another case which demonstrates the difficulties which people can face when looking to challenge on grounds related to the capacity of the person who has made a will.

“In this case, the judge has clearly decided after assessing all of the facts that it would be inappropriate to accept the challenge, as it would go against issues which have been raised in case law and general views on the issue. He was ultimately satisfied Mrs Simon, despite suffering from dementia, had capacity.

“However, it is also a reminder that each case is obviously different and needs to be considered relevant to the particular facts, specifically at the time instructions for the will were given and at the time the will was executed.  

Adam added: “Like many will disputes, this case also highlights the difficult splits and relationship breakdowns that can be caused in families as a result of such an issue.

“It is hugely important that people who are preparing wills especially involving those with dementia or Alzheimer’s’ disease work to avoid such cracks from emerging.  This can be done by instructing a solicitor at an early opportunity who can prepare a clear and concise will and record the reasons behind the will. 

“The courts have also repeatedly emphasised the value of following the 'golden rule' of instructing an independent medical practitioner to clarify capacity before a will is executed by an elderly person or someone whose capacity may be questioned to avoid the risk of future claims.  If the person has lost capacity all is not lost as the court can authorise a statutory will to be executed.”

Read more about Irwin Mitchell's expertise in relation to Testamentary Capacity