Will Made by Dementia Sufferer Ruled Valid
In the recent case of Constance Simon (2013) the high court ruled that elderly people may leave property as they wish even where they have reduced mental capacity. Judge Strauss ruled that the law “upholds the right of elderly people to leave their property as they choose, even if their mental faculties have declined considerably”.
This case saw Mrs Simon – a wealthy woman – drafting her final Will while suffering from dementia. In her previous Will her estate had been divided between her four children but favoured her son Robert, leaving him property worth £1.75 million and shares in the family business. Mrs Simon drew up her final Will at her 88th birthday party which was attended by two of her children, but not Robert. The Will was made without the assistance of a solicitor and in the presence of two of the beneficiaries. Following Mrs Simon’s death Robert challenged the will on the grounds of capacity.
The High Court rejected this claim, ruling that the court must protect the rights of the elderly to leave their property and that this must include many cases in which individuals can “no longer remember all circumstances relevant to the division of their property”.
Protecting Your Will
Although this case emphasises the importance of upholding the wishes of the elderly, it demonstrates the crucial role played by those preparing wills for those with dementia in protecting against claims of incapacity. One way of safeguarding your Will is to instruct a solicitor at an early stage who can prepare a clear and concise Will, as well as record the reasons behind it.
This protection has been further strengthened by the recent case of Hawes v. Burgess (2013) which demonstrated that where an experienced solicitor has assessed a client as having mental capacity at the time of drafting their Will, this evidence shall be favoured above that of medical experts provided retrospectively.