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October 11, 2021

Can you contest a will made by someone suffering from dementia?

By Spear's

As the adult children of the late Monty Python star Terry Jones prepare to contest his will in the High Court, Kate Salter explains the factors at play

Several stories have recently been published about the ‘legal battle’ in the High Court relating to the estate of actor Terry Jones, who was well known and loved for his role in Monty Python and who died in January 2020.

The adult children from his first marriage have reportedly commenced proceedings against their father’s estate and his second wife Anna Söderström, who is thought to be the main beneficiary of the estate. 

They claim that the will made by their father in 2016 is invalid because he lacked capacity when he made it. As a matter of law, a will made by someone who lacks the required mental capacity at the time they made it is not valid.

It is yet to be seen what facts and evidence the claimants will rely on to support their claim, but the case is likely to focus on the fact that Terry Jones was known to have suffered from a rare type of dementia called frontotemporal dementia (FTD), in a form known as primary progressive aphasia – a condition caused by damage to parts of the brain that control personality, emotion, language and behaviour. 

However, if a person making their will (the ‘testator’) is elderly or suffering from a mental illness like dementia, that does not automatically mean that they lack the capacity to make a will. In fact, there is a strong legal presumption that where the testator has made a will – and provided it complies with the specific formal requirements under the wills Act 1837 – they do have capacity unless it is proven otherwise.  

This means that if another party (usually a disappointed beneficiary) wants to challenge a will on the basis of lack of capacity, then it is up to that party to prove the testator did not have the required capacity to make the will (known as ‘testamentary capacity’) at that time.

The concept of testamentary capacity that the courts are concerned with is not necessarily the same as most people’s ‘normal’ understanding of capacity, nor is it the same as the test for mental capacity under the Mental Capacity Act 2005 (which applies to activities other than making a will). When assessing testamentary capacity, the court will consider the specific facts around the case, and in particular must be satisfied that the test for capacity laid down in Banks v Goodfellow (1870) has been met. 

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Broadly speaking, a testator has capacity if he understands the nature of making a will and its effects. He must also understand the extent of the property which he is disposing (the assets he owns), and be able to understand and appreciate the people benefitting in the will. Finally, he must not be affected by any disorder of the mind or ‘insane delusion’. In 2021, the Court of Appeal confirmed that Banks v Goodfellow remains good law and should be followed when determining testamentary capacity. 

So what does this mean for people suffering with a mental illness such as dementia, like Terry Jones did, who want to make or update a will? After all, there are many types of dementia and people are affected to varying degrees. According to information from the Alzheimer’s Society, around 850,000 people are currently living with dementia in the UK, and one in six over the age of 80 have dementia. Are they capable of making a valid will? Unfortunately, there is not a binary ‘yes’ or ‘no’ answer. It will depend on the facts and circumstances of the particular individual. 

At first glance, this might seem an unhelpful answer, but it is good news for testators suffering with dementia. Under the law, a testator is potentially capable of having testamentary capacity one day, but not the next, and vice versa.

Testamentary capacity is time and task specific. A condition like dementia means that capacity can vary day-to-day or even hour-to-hour, and therefore a testator’s ability to understand their will can depend on the severity and nature of their condition and the extent to which they were affected when giving instructions for, and/or executing their will. 

Other factors relevant to the assessment of testamentary capacity will include the complexity of the estate, the nature of the assets, and the number and identity of the beneficiaries. In practice, if a testator is known to be affected by dementia of any degree, it is advisable that the professionals assisting with the preparation of the will should follow what is known as ‘the Golden Rule’. 

Put broadly, this means that a medical expert should assess and confirm the testator’s capacity to make the will, while any earlier wills should be discussed with the testator, particularly if they wish to make significant changes. Instructions for the will should be taken independently from any of the proposed beneficiaries. 

Once a will has been made, the courts will not set it aside on the grounds of lack of testamentary capacity lightly. Cases run purely on the basis of lack of testamentary capacity are notoriously challenging for claimants, particularly where solicitors and medical professionals have been involved in the creation of the will. 

Medical experts will be appointed in the course of proceedings to provide an opinion on whether the testator had testamentary capacity when making their will, but any expert report is often limited by the fact that they were unable to assess the testator’s capacity at that time.

The expert will be able to review medical records and witness evidence, but it is quite unusual for an allegation of lack of capacity to be undeniably made out, particularly if the witnesses to the will give evidence, alongside a solicitor or professional will writer – especially one who has followed the Golden Rule.

Kate Salter is a Senior Associate in the Contentious Trusts & Probate team at Kingsley Napley.

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