Our Commercial Disputes Associate, Alexia Thomas, comments on the news that more Wills are being challenged due to the rise in dementia cases.

It is estimated that 1 in 14 people over the age of 65 suffer from dementia and 1 in 6 over 80. The rise in dementia cases has resulted in a growing number of Wills being challenged because disgruntled family members allege that the person who made the Will was not of sound mind.

For a Will to be valid, the person making the Will must have testamentary capacity. This means that the person should understand: 

(i) the purpose of a Will

(ii) the extent to which they are distributing the assets under the Will

(iii) that claims may be brought under the Will from those who have not been left anything (or not what they expected) 

(iv) that they are not affected by a mental illness which could affect their judgment. 

There is an increasing trend of people challenging Wills simply because the person who made the Will was elderly and slightly forgetful. What these family members don’t realise is that the threshold for challenging a will on the basis of capacity is very high, and will require a substantial amount of evidence to prove that the individual lacked capacity. Because of this, the majority of challenges to wills are settled out of court, or in the event they make it to court, fail. 

With an ageing population, we can expect Will challenges based on capacity to continue to rise.

If you would more like to speak to someone about challenging a Will, please contact Alexia Thomas.