Mental health problems are becoming less of a taboo subject than they used to be many years ago. Alzheimer’s Disease in particular has been gaining a great deal of press coverage in recent times. Medical research is working hard at discovering drugs which can delay the speed at which this disease takes hold of its patients.
According to the Alzheimer’s Society, the most common mental impairment is dementia and Alzheimer’s is the most common type of dementia affecting 62% of those diagnosed. Currently there are 850,000 people with dementia in the UK, with numbers set to rise to over 1 million by 2025 and 1 in 6 people over the age of 80 have dementia and 70% of people in care homes have dementia or severe memory problems.
It can be a very difficult time for families and carers when caring for someone lacking mental capacity, but sometimes difficulties continue after that patient has died.
More and more frequently, the Will of someone who has died is being challenged on the grounds that the deceased lacked mental capacity at the time they made their Will. And this is a valid ground for challenging the validity of the Will. There is also another similar ground for challenging a Will and that is to allege that the testator ‘lacked knowledge and approval’ of the contents and consequences of the Will that they have signed.
Often this means that medical records need to be obtained and analysed after that person has died.
A recent case which surrounded the question of the mental capacity of the testator was the case of Walker v Badmin  AER 258.
In that case, two daughters challenged their late mother’s will on the ground that her fatal and psychosis inducing brain tumour meant that she had lacked testamentary capacity.
The case generated much media attention due to its unusual facts. The deceased had left her husband of over 25 years to live with a man who, at 23 years her junior, was of similar age to her daughters (they had in fact known each other from university).
At the time of her death the mother’s main assets were:
- Her 50% interest in the matrimonial home.
- A claim to a share of her first husband’s pension assets
- A pension lump sum payment which was paid into the mother’s and her young partner’s joint account.
Her most recent Will (executed shortly prior to her death) left all of her assets on trust for her young partner for his life, although they had only lived together for a few years, meaning that her daughters were unlikely to see anything during their lives.
Both parties relied on factual and expert evidence to support on one hand the argument that she no longer had testamentary capacity to make a valid Will and on the other hand that she did have capacity to put effect to her wishes. The parties’ expert medical witnesses agreed on many points about the deceased’s mental capacity, but they disagreed on the central issue, whether she had testamentary capacity at the time of its execution. Neither expert had met the deceased in her lifetime and therefore the judge attached more evidence to the emails which the mother had sent around that time when assessing the question of testamentary capacity. As a result, the daughters’ challenge failed.
The case provides some clarity to contentious probate lawyers dealing with cases arising out of mental capacity issues and refines the test needed to ascertain whether someone had capacity to make a Will or not.
If you would like further advice or assistance in connection with a Will dispute arising out of mental capacity issues (or also how best to avoid one), please contact either Helen Freely or Rachel Diedrich on 0207 638 9271