For a will to be valid, the maker of the will should have the right mental capacity. An increasing number of people are contesting wills on the grounds of mental incapacity. Normally, the presence of Alzheimer’s, or other degenerative conditions, does not automatically mean that the person lacks mental capacity; facts must be considered in order to reach the right decision. In a recent case, the will of a woman who suffered from Alzheimer’s was disputed on the grounds that she lacked the mental capacity to make it.
According to Curry Popeck solicitors, when a will is prepared for an unwell or elderly person, a note should be obtained from a doctor, depending on the individual circumstances, to ascertain that the testator has testamentary capacity; this is referred by some as the ‘golden rule’. However, this golden rule is not always followed, so when a dispute regarding a will arises on the grounds of mental incapacity, the lawyers have to obtain evidence of the testator’s likely state of mind when the will was made.In this case, the testatrix had changed an earlier will so as to leave her entire estate to her elder son, because she had severed all ties with her younger son. The younger son challenged the will on the grounds that it had not been properly witnessed and sought to have it ruled invalid.
The elder son had engaged an expert psycho-geriatrician, who established that the mother was mentally competent enough to understand the will and its implications and approve it as drafted. This might have impacted on the decision but did not as the psycho-geriatrician did not receive a wholly appropriate letter of instruction regarding examination of the elderly woman.
After carefully considering all the evidence, the judge refused to rule that the changes to the will were because of delusion, concluding instead that the woman’s view was the result of a ‘confabulation’ – the invention of circumstantial or fictitious detail in order to ‘fill gaps’ in one’s memory.
The judge also accepted the psycho-geriatrician’s evidence despite being technically flawed as it supported the elder son’s argument that his mother had been mentally sound when she made her new will. Hence, the younger son’s challenge was rejected.
Through illness or old age we may not be in a position to make the most important decisions about our finances or welfare, so professional advice is important to safeguard your interests, state the London solicitors, Curry Popeck.
Curry Popeck solicitors can assist you with your will or power of attorney andhelp you safeguard your interests.
So, if you would like the experts at Curry Popeck to assist you with your Will or Power of Attorney, or would just like to discuss the concerns raised in this article with one of their friendly, helpful solicitors, don’t hesitate to call them on020-8907-2000, or visit-http://www.currypopeck.com/