Case Law: Dementia-Induced Mild Cognitive Impairment

Elspeth Neilson
lady holding a cup

Table of Contents

Dementia is a harsh reality for increasing numbers of families. Sadly, it means the disputed wills solicitors at Osbornes Law are seeing greater numbers of will challenges following the death of a dementia sufferer – their capacity to make a will being called into question.

Reassuringly, the courts do not tend to readily conclude the individual had dementia to such an extent that they lacked the necessary mental capacity to make a will. In a recent case, a testatrix suffered severe dementia by the time of her death – but the judge decided her will be made following the diagnosis was valid.

Boult v Rees (Re Estate of Tilly Clarke) [2023] EWHC 147

Tilly Clarke was 90 when she died in March 2019 with severe vascular dementia, leaving a modest estate of around £225,000. Tilly made her will in 2013 appointing her only child, Roger, as executor and the sole beneficiary; and if he died first – one of her nephews (Danny) and his wife would inherit her estate. Roger died of cancer in 2015.

Following Mrs Clarke’s death, one of her nieces claimed Mrs Clarke lacked the capacity to make her will.

The outcome of the niece’s claim would be significant: if the will was indeed invalid, Mrs Clarke would have died intestate with her estate passing to her next of kin under the statutory intestacy rules. This would entitle all her surviving nieces and nephews to an equal share of her estate – and Danny’s inheritance would be significantly diluted (his wife would not be entitled to anything).

In capacity cases, the courts look at the factual background around the making of the will to decide whether, on balance, the individual had testamentary capacity.

Diagnosis

There were initial indications of problems with Mrs Clarke’s mental health at the start of 2013 (mostly mild cognitive impairment and headaches). Dementia was diagnosed in March following a scan but she had no further contact with doctors until the following year.

Meanwhile, in May 2013 Mrs Clarke instructed solicitors to prepare her will. This was executed and witnessed by the solicitor and a secretary. Where a solicitor suspects their client may not have testamentary capacity to make a will, they are expected to follow the Golden Rule – a rule of good practice where a doctor is asked to conduct an independent capacity assessment and certify that the individual has testamentary capacity.

Mrs Clarke’s solicitor said in evidence he had no reason to request a medical report, “or even consider it”, as he had no doubt as to her capacity at the time. An expert psychiatrist also told the court that in his experience people with relatively mild degrees of cognitive impairment often have sufficient understanding to be able to make a will, and nothing in her medical records suggested Mrs Clarke had been delusional.

The judge found the will was rational on the face of it; there was nothing suspicious about the identity of the beneficiaries; and she was able to understand the nature and implications of her will.

Although he found that there was some doubt in view of her dementia diagnosis, it was not enough to show on balance that Mrs Clarke lacked testamentary capacity.

What does this mean?

Depending on its form, dementia progresses differently from one person to the next. But this ruling makes clear that mild cognitive impairment does not, in the absence of other evidence suggesting otherwise, raise sufficient concern around the individual’s testamentary capacity.

Where someone is seeking to cast doubt on the will-maker’s mental capacity to make a will due to dementia, Alzheimer’s or other mental health reasons, there must be sufficiently weighty evidence for the will to be declared invalid.

How can we help?

The disputes wills team at Osbornes Law appreciates how distressing these cases can be. We are experienced in advising clients on both sides where the veracity of a will is being contested.

Share this article

Contact

Contact us today

For a free initial conversation call 020 7485 8811

Email us Send us an email and we’ll get back to you

    • [utm_campaign_i][/utm_campaign_i]
      [utm_source_i][/utm_source_i]
      [utm_medium_i][/utm_medium_i]
      [utm_term_i][/utm_term_i]
      [utm_content_i][/utm_content_i]
      [gclid_i][/gclid_i]

    • "I was impressed and grateful from the very beginning - the team are extremely detailed, very thorough, helpful and reassuring at the same time. I would absolutely recommend Osbornes Law."

      Chambers UK 2023

    • “William Ford is impressive and devoted to the sector.”

      Chambers Uk

    • Lisa Pepper is a talented lawyer and we regularly refer to her for mediation

      Legal 500 2022

    • The team has considerable strength in adoption, surrogacy and fertility matters through Naomi Angell.

      Legal 500 2022

    • Osbornes is commended for its 'rare level of commitment'.

      Legal 500

    More Insights about Contesting a WillVIEW ALL

    1. international map and money
      9.6.2023

      Will Dispute Case Law

      New Births And New Relationships? Review Your Will To Avoid A Dispute You’d imagine a wealthy businessman with assets...

      Read more
    2. diamond held by tweezers
      9.6.2023

      Proprietary Estoppel Case Law

      On A Lick And A Promise? The First Hurdle In Proprietary Estoppel Claims Solicitors are increasingly instructed by clients who...

      Read more
    3. the moon
      1.3.2023

      How to prevent someone contesting a will

      It is fairly rare in my experience for a parent to write a child out of their will but that...

      Read more
    4. last will and testament disputes
      27.10.2022

      Contesting A Will Case Studies

      Will dispute on grounds of lack of capacity Our contesting a will solicitors acted for the claimants, the adult daughters...

      Read more
    5. scrap metal
      20.10.2021

      Evidence Needed When Contesting A Will

      ‘Scrap King’ Multi-million Inheritance Dispute Confirms the High Standard of Evidence Needed to Contest a Will   Gary Goodwin, son of...

      Read more
    6. couple holding hands
      20.10.2021

      Understanding Testamentary Capacity

      What is testamentary capacity? Testamentary capacity refers to a person’s ability, both legally and mentally, to create a valid...

      Read more
    7. toy houses on coins
      20.10.2021

      Contested Will Claim Against Estate Fails

      The recent reported case of Shearer v Shearer highlights that adult children cannot expect an estate to support their affluent...

      Read more
    8. hat on back shelf of car
      13.8.2021

      What is reasonable financial provision in 1975 Act claims?

      The long-running and high-profile case of Ilott v Mitson [2017] UKSC 17 has finally come to an end with the decision of...

      Read more
    9. older lady
      9.10.2020

      Undue Influence in Wills

      Vigilance Needed to Protect Those Vulnerable to Undue Influence The coronavirus pandemic has left many elderly and vulnerable people increasingly...

      Read more
    10. Last Will and Testament
      2.9.2020

      What Can I Do if I Have Been...

      I was left out of my mother’s last will. What can I do? Whilst testators in England and Wales...

      Read more

    VIEW ALL