Dementia ‘driving up will disputes’

Legal experts say that people hiding their dementia due to the stigma of mental illness could be helping to fuel an increase in will disputes.

A national firm of solicitors reported in December that in 2014 it had seen a 53 per cent increase in the number of will dispute cases where it was claimed that someone lacked the mental capacity to make or alter their will.

For a will to be valid, the person making it must have had testamentary capacity. which means that they:

  • must understand what a will is and what it is for
  • must understand, in broad terms, the nature and value of their assets and liabilities
  • must appreciate the claims of those who might expect to be left something in the will
  • are not affected by a mental illness that affects their judgment regarding the way they dispose of their estate.

A representative of the solicitors’ firm issuing the report said: “People are living longer than previous generations so more and more people are being affected by mental illnesses such as dementia. This is giving rise to a massive increase in the number of people who are disputing wills which were made by people who didn’t know they were suffering with dementia at the time, but many also involve people who didn’t tell anyone about their illness, and will writers/solicitors who were not doing their job properly and have not asked the appropriate questions to test their mental state.”

“In some cases, it is simply not obvious that someone’s mental capacity is impaired. There are also cases where a person with dementia has learnt to put up a very plausible social façade to cover up their illness. It can be difficult to penetrate that if questions are not asked in a skilful way when taking instructions for a will.”

“Other claims relate to family, friends and acquaintances who have tried to take advantage of someone suffering from dementia.”

In October 2014, a report published by the International Longevity Centre UK think tank found that at least one in four people hide their diagnosis of dementia, citing stigma as the reason.

Lee McClellan, a partner in Palmers’ Wills, Trusts and Probate department, said: “We too have seen an increase in clients wishing to dispute will<!–>s. Such disputes can be distressing, time-consuming and expensive and the best way to avoid challenges to your will at a later date is to ensure that the will is drafted by a legal professional experienced in this field.”

“None of us know whether we might be affected by dementia in the future, which further reinforces the importance of making a will as early as possible. Making clear what your wishes are – and discussing your plans with loved ones – will give you peace of mind and certainty for your family in the event of your mental capacity deteriorating.”

“Making a lasting power of attorney (LPA) at the same time as putting in place or updating a will also provides a valuable safety net, as it will allow trusted family members or friends to make decisions about your health, welfare and financial issues should you lose the capacity to do so. For more information regarding wills, LPAs or inheritance tax planning, please contact our Wills, Trusts and Probate department.”