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Friday, 16 September 2016

Will disputes may increase with an ageing population


The press reports that the children of Michael Inchibald are involved in a will dispute surrounding his £20 million estate. The deceased was a renowned interior designer. 

The dispute centres around whether the deceased knew and approved the content of his 2007 will which replaced a will made two years earlier. 

The second, most recent, will split the estate equally between the children. The previous earlier will placed the daughter’s half share in trust such that she only received the income for life with the capital sum reverting to her brother and children on her death. 

In this case reported in the Evening Standard, it is argued that Mr Inchibald was suffering from dementia in 2007 and that he did not understand the fundamental change.  

We have an ageing population who are suffering from Alzheimer’s and dementia. 

These terrible degenerative illnesses are leading to increases in challenges to wills and trusts. This case is similar to the large number of cases we regularly deal with. The court will consider medical evidence along with the evidence of the solicitor who took instructions for the will and the evidence of relevant witnesses. 

The key issue for the court in this case will be the extent to which the deceased’s capacity had declined by 2007. That is notoriously difficult to prove. Many expert legal and medical bodies have for some time suggested that better training is needed to help solicitors spot problems with the capacity of clients at the time a will is made. 

There is a risk of incorrectly judging whether people have the mental capacity to make a valid will leading to what’s claimed to be a growing trend to contest a will on the basis of lack of testamentary capacity. 

Lawyers are already professionally obliged to note any concerns they may have about the capacity of the testator (the person making the will) at the time instructions for drafting a will are received, and ought to be in a position to judge capacity when in front of any client wishing to make a will. There is an advantage in having related experience and it is helpful if the solicitor drafting a will is familiar with equally complex and related issues such as applications for Lasting Powers of Attorney or dealing with the Court of Protection. 

If the testator makes a strange or an unwise decision that’s often thought by the layman to be evidence of lack of capacity. Not so – it’s just evidence of an unwise decision and we’re all capable of making those! The truth is that most successful challenges to wills do not dispute the validity of the actual document itself, but rather challenge the lack of financial provision made for dependents within the will using the Inheritance (Provision for Family and Dependants) Act 1975. In order to make a claim under the Inheritance Act there must be some direct connection, financial dependency or relationship with the deceased which allows a claim for ‘reasonable financial provision'.  

It remains important that wills are regularly reviewed and updated. If you or a loved one have been diagnosed with dementia or Alzheimer’s it is important that you obtain specialist advice as soon as possible in relation to your will, the execution of a Lasting Power of Attorney and wider legal and financial affairs. In cases such as this it is always wise to bear in mind that solicitors are experts in the law – not psychiatric medicine. The golden rule prescribes that, particularly with elderly testators or those suffering from a serious illness, that the will changes should be verified by a medical practitioner. 



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