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Delusions and Dementia Do Not Invalidate Will

Many cases arise each year in which the validity of a will is challenged on the ground that the will's creator (the testator) was not of sound mind when it was made – which is known in legal parlance as 'having mental capacity'.

The outcome of such cases always depends on whether or not there is sufficient evidence to demonstrate that, at the time the testator made the will, they were able to and did understand what it contained and what its implications were.

In a recent case, the High Court considered a challenge to the will of a farmer, which she had created, without seeking professional help, five years before she died. It left her daughter a legacy of £10,000 and her son, with whom she had farmed in partnership, the balance of her estate – worth some £600,000.

The daughter challenged the will, claiming that by the time she created it her mother was suffering from Alzheimer's disease and was confused, forgetful and aggressive. She also claimed that her mother suffered from delusions in the form of voices speaking to her. Her symptoms included memory loss and she could not be left alone as she was prone to wandering off. She needed help with basic functions such as feeding herself.

The daughter's claim was supported by the fact that a few months after the will was created, the woman's application for Attendance Allowance was completed by her sister on her behalf as she was unable to complete it herself.

This may seem to be strong evidence for the proposition that the woman could not create a valid will, but the Court concluded that she did have sufficient mental capacity to do so for a year or more after the one she made had been drafted and it was therefore valid.

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    This ruling is not out of step with several recent decisions. However, the High Court is an expensive place to decide the validity of a will. In this case, the likelihood of a challenge to the Court's decision is clearly high. The case could probably have been avoided had the precaution been taken of having the woman's mental capacity assessed by a specialist and the will prepared by a solicitor, whose attendance notes would have shown that they were satisfied that the woman had mental capacity, which is important evidence.

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