For a Will to be valid, the testator (the one making the Will) must be ‘of sound mind’ at the time of making and signing the Will. This means that they must be capable of understanding and approving of the contents and effects of the Will.
With health conditions such as dementia becoming an increasing issue for our ageing population, this can present a problem when making a Will. If a testator is diagnosed with dementia before or shortly after making a Will, this can provide potential grounds for a challenge to the Will when they pass away.
However, as a recent court case shows, the type and severity of the dementia experienced by the testator is critical, meaning a Will made when the testator is experiencing dementia will not necessarily be considered invalid if the matter comes before a judge.
The case involved a dispute over the estate of a woman, Beryl Parsonage, who passed away in November 2015, leaving behind four adult children and eight grandchildren. Mrs Parsonage had made two very different Wills, which were the subject of the dispute between her children.
In the first Will, created in 2010, Mrs Parsonage left her home to one of her children (Duncan Parsonage) and smaller gifts to her other children (Alison Taylor, Sian Folley and Ian Parsonage) and one of her grandchildren (Duncan’s only child). The second Will, created in 2011, divided the estate equally amongst the testator’s four children.
Both Wills were drafted by a solicitor and properly witnessed, but Duncan (who had lost out under the newer Will) contested the validity of the second Will on the basis that, at the time it was made, his mother was suffering from dementia.
When the matter came before the High Court of Justice in Birmingham following a three-year legal battle, the judge, His Honour Judge Barker QC, ruled that the 2011 Will was valid. Judge Barker found that the dementia Mrs Parsonage had been experiencing was relatively mild at the time when the Will was made and therefore that she had been capable of making sound decisions about the contents of her Will.
Having ruled that the 2011 Will was valid, the judge also ordered that Duncan was to pay his brother Ian’s legal costs of £152,500, with this to be charged against Duncan’s share of the inheritance from their mother’s estate.