The reality of course, is much less straightforward. The onset of dementia can be a very gradual process and a person may satisfy the legal test for capacity to make a will for some time following a diagnosis.
On the other hand, a person’s dementia may not have been diagnosed; those with moderately advanced dementia may present very lucidly (often motivated by the person’s desire to cover up their perceived shortcomings) and may elude detection unless the right questions are asked.
This can create a real difficulty for practitioners, some of whom may be uncomfortable countenancing the idea their client lacks capacity. These issues can provide ample ‘material’ for the would-be challenger.
As mentioned above, however, an increase in dementia diagnoses is only part of the story. Added to this mix are larger estates (fuelled by significant increases in property prices) and more complex family relationships.
Second and third spouses, and children from different relationships are commonplace, sometimes giving rise to difficult family dynamics.
There also appears to be an increased willingness on the part of disappointed would-be beneficiaries to “assert their rights” over a deceased person’s estate. It might be a point of principle, or that would-be challengers think they have nothing to lose but a lot to gain, believing (wrongly) that the costs of the challenge will automatically be met by the estate.
So, should people be concerned by the apparent increase in will disputes? Or will people be put off from making a will if they believe it can be easily overturned?
The short answer to both these questions should be “no”.
Despite what is reported about these cases in the press, the reality is that it is in fact very difficult to challenge a will successfully; the Courts have on numerous occasions confirmed they will be slow to overturn the express wishes of a deceased person.
The Courts have also confirmed that where a will is drawn up by an experienced solicitor, again, a judge will need to see cogent evidence if it is to be overturned.
That said, there are steps that those making wills can take with their advisers to reduce the likelihood of a later challenge.
One such step is ensuring that testamentary wishes are reviewed at regular intervals, as life circumstances change. Thought should also be given to the practicality of wishes. For example, we often see successful business people leave interests in owner-managed businesses that simply do not align with the interest of the business itself, or its shareholders. Advice should be taken on this.
The other practical step that can be taken is to ensure evidence that may be required later on is considered at the time of making the will.
For example, where the person making a will is elderly or infirm, consideration should be given to obtaining a doctor’s report confirming the person has the necessary testamentary capacity to make a will.
Unsurprisingly, clients may feel affronted by their lawyer suggesting a doctor’s report be obtained. However, amongst lawyers it is known as ‘the Golden Rule’.
Importantly, if a will is later challenged, a detailed letter from a doctor confirming the person making the will had capacity and the basis of this conclusion can assist in disposing of a challenge quickly and with the minimum of expense.
Again, the Courts have confirmed that the evidence of mental capacity gathered at the time the will is made is often to be preferred to that given by an expert after the person has died.
Likewise, while the freedom to leave one’s estate to whomever one chooses remains a fundamental principle of English law, if a person is considering disinheriting someone, detailed reasons that can be kept with the file should be given. Such reasons are not legally binding, but may be useful in defending a challenge to the will.
While, doubtless, an increase in dementia diagnoses is contributing to the increase in will challenges, this should not put off those wishing to make a will. If appropriate advice is taken at the outset, then the time and significant cost of litigation (costs to trial can easily exceed £100,000) may be avoided.
