June 20, 2016

Can a dementia sufferer make or alter a Will?

In Lloyd v Jones and Others, a testamentary capacity case involving an estate worth just under £600,000, the deceased’s daughter claimed that her mother had suffered from mental decline from about 2001, and that by 2004 she was suffering from confusion, forgetfulness, aggression and strange delusions as well as having developed Alzheimer’s type dementia. She also occasionally got up and wandered about during the night.

The daughter claimed that as a result her mother’s Will dated 2005, a simple Will made without the involvement of a solicitor, was invalid on the basis that her mother had lacked testamentary capacity and had not known and approved the content of her Will.

The court concluded that the deceased had indeed begun to suffer from dementia from May 2004 and that it was also likely that she had from time to time suffered from delusions of the type described by her daughter. It also found that she had occasionally got up and wandered during the night.

However, the delusions were only relevant if they affected the provision made in the Will. However bizarre the delusions, the court concluded that as they had not affected the content of the Will, they were not relevant to testamentary capacity.

The court also found that wandering in and of itself did not automatically show the deceased lacked the required capacity and that she still had the capacity to understand.

The Will was upheld, the Court deciding that the deceased had the necessary testamentary capacity, had read and approved it and had known and approved its content despite her cognitive decline.

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