Wills and Dementia

In order for a will to be valid, it must, among other things, be properly executed (signed and witnessed) and the testator must have testamentary capacity. This means that, at the time the will is made and signed, the testator must

1. know they were making a will,
2. understand what property they have and how it is being distributed, and
3. must be free from any “disorder of the mind” which could influence their decision making process.

In the case of Burns –v- Burns, [2015] EWCA Civ 37, the Court of Appeal was asked to decide if someone suffering from dementia could meet this test.  On 21 May 2010, Mrs Eva Burns died aged 89 years. She was survived by her two sons, Colin Burns and Anthony Burns. On 8 May 2003 she had made a will leaving the majority of her estate to Anthony. Anthony lived with Mrs Burns from around 1989 until 2003, when he left following a dispute with his brother.

From September 2003, concerns were expressed about Mrs Burns’ mental health and, following an assessment by a community psychiatric nurse in March 2004, she began attending a day centre specialising in the care of the elderly and those suffering from dementia.

In November 2004, Mrs Burns took the first steps towards making a new will. She wrote to her solicitor explaining her wishes, approved the draft will in December 2004 and signed it on 26 July 2005. The “golden rule” for solicitors drafting wills for clients whose mental capacity is in doubt is for an approved medical practitioner to witness the will. This did not happen in this case and, in fact, the solicitor who drafted the will was not aware of the “golden rule”.

Mrs Burns continued to attend the day centre and, in May 2005, Mrs Burns she had further assessments which concluded that her mental health was “moderately impaired with medium dependency”.  Following her death, Anthony brought a claim that the 2005 will was invalid as his mother lacked testamentary capacity.  In spite of the facts, the Court disagreed. It found that at the time the will was drawn up (between November to December 2004) Mrs Burns did have mental capacity and that, when she signed the will some seven months later, she was cognisant of the fact that it was a will and that it reflected her wishes. On that basis, the will was valid.

This conclusion may appear surprising to many but it is important to remember that each case turns on its own facts and that a very different conclusion may have been reached in another case where the testator suffered from dementia.

If you have any questions about this case or about contesting or defending a will, please contact Debbie Sadler on 0118 955 9607 or at d.sadler@hewetts.co.uk.

Published on 18/04/2016