Lawyers See Significant Rise In Number of Contested Wills Involving Mental Capacity Issues

Expert Will dispute lawyers have revealed that people hiding their dementia due to the stigma of mental illness is leading to a rise in the number of Wills being disputed by friends and families and say that vulnerable people need more support to avoid being taken advantage of.

Specialist lawyers at Irwin Mitchell are warning about the rise of cases involving disputes related to capacity issues where it is argued that the person who has made the Will lacked the mental capacity to make or alter their Will. The law firm has seen a 53% rise in claims of this nature in the past year.

For a Will to be valid, the person who made it must have had testamentary capacity which means they:

• understand what a Will is and what it is for 
• understand the extent of the assets they are distributing
• appreciate the claims of those who might expect to be left something in the Will.
• are not affected by a mental illness to the extent that it affects their judgment relating to how to dispose of their estate.

A recent study suggested that many people with dementia may be hiding their illness from others because of an apparent stigma associated with the condition and lawyers are warning that this could lead to even more claims in future. Dementia currently affects 1 in 14 people over the age of 65 and 1 in 6 over the age of 80. It is expected that more than 1m people will be diagnosed with the illness in the UK by 2020.

Lawyers at Irwin Mitchell say that as well as issues relating to dementia, complex family lives, rising house prices, DIY Wills and an ageing population are also fuelling the rise in the number of people having issues with invalid Wills.

Julia Burns, a specialist solicitor in the Will, Trust and Estate Disputes team at Irwin Mitchell, has reported that the team is receiving more than 70 new enquiries a month. She said: “People are living longer than previous generations so more and more people are being affected by mental illnesses such as dementia. This is giving rise to a massive increase in the number of people who are disputing Wills on the basis that the person making it did not have the capacity to create a valid legal document.

“Some of these claims relate to Wills which were made by people who didn’t know they were suffering with dementia at the time, but many also involve people who didn’t tell anyone about their illness, and Will writers/solicitors who were not doing their job properly and have not asked the appropriate questions to test their mental state.

“Other claims relate to family, friends and acquaintances who have tried to take advantage of someone suffering from dementia. Sadly it is often only when that person dies that other people in their life realise that someone is seeking to benefit from their illness and that the Will doesn’t reflect what they believed to be the wishes of the deceased.

“People with dementia are extremely vulnerable to being influenced in terms of their finances and the contents of their Wills, which can lead to people being taken advantage of and Will disputes following their death. Part of a solicitor or Will writer’s duty is to check that the person making a Will is of sound mind and understands the consequences of their actions but sadly  the appropriate tests are not always being carried out.  In some cases, it is simply not obvious that someone’s mental capacity is impaired.  There are also cases where a person with dementia has learnt to put up a very plausible social façade to cover up their illness. It can be difficult to penetrate that if questions are not asked in a skilful way when taking instructions for a Will.”

Friends and family may end up in a dispute over what to do with the estate, especially when somebody feels they have been unfairly left out of the Will or not been adequately provided for.
In some cases, it is appropriate to apply to court to have the Will set aside in favour of a previous Will. If no previous Will exists then the intestacy laws will apply. However, most cases settle out of Court. 

Julia added: “We would advise people who are concerned about making a Will to ensure they contact specialist solicitors who can help ensure that any Will made is valid and that the appropriate tests are carried out to ensure the testator has capacity. The Courts have made it clear in recent case law that a Will drafted by a specialist Solicitor who is able to provide contemporaneous evidence as the testator’s capacity, is more likely to be upheld than one that has been drafted in other circumstances.  Where there are capacity issues, an experienced practitioner will be able to properly advise on the course of action needed. This may include obtaining a medical report before the Will is made or, in serious cases where a person clearly lacks capacity, calling on the assistance of the Court of Protection so that a Statutory Will can be made.”

Irwin Mitchell recently represented relatives and charities who had been named as beneficiaries in a Will made by an elderly lady. When she died they discovered that she had apparently made a later Will which conferred a substantial benefit on her housekeeper/carer. The Will had been made without the knowledge of the lady's other regular visitors, was prepared by a firm of Will writers whose visits were arranged by the housekeeper and without obtaining specific confirmation of the lady's mental state from her doctor.  Irwin Mitchell were successful in having the new Will set aside on the grounds that it was made at a time when the lady no longer had testamentary capacity.

Another case concerned an orphaned adult man, who had been taken in by a couple when he was  a young teenager and brought up as part of the family alongside their other children. A Will was written which shared his new parents assets equally among them but while giving instructions for a later Will, his ‘mother’ could not remember details about how long he had lived with the family or how close their relationship had been, which the Will-writer didn’t question and his share was significantly downgraded. Irwin Mitchell succeeded in helping the man to receive what is believed to be her true wish when she made the original Will.

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