Mental Capacity

Mental Capacity to Make a Will

My mothers’ aunt recently died from Alzheimer’s. Her memory had been getting bad for a number of years and following a recent accident she was put into a care home.

In 2008 she made a will, dividing her assets among her relatives and also left quite a bit to charity. My father was the executor of her will.

In 2012, on the advice of doctors, my father obtained a Lasting Power of Attorney so he could look after her affairs as she could not.

Now, following her death a new will has emerged in which all her assets are left to a single beneficiary, one who was named in the will of 2008. However this new will was created after my farther was granted the Enduring Power of Attorney.

Now surely this recent will was created when the aunt was ‘not of sound mind’, after all doctors had recommended that someone take control over her affairs.

Where does my father stand? He is taking advice from a lawyer/solicitor but they say it’s a ‘grey area’ and could take years to sort out, but personally I don’t see why. It seems evident that his aunt has been taken advantage of by a greedy relative.

Many thanks


Probate Answer: Mental Capacity to Make a Will

There would indeed seem to be some cause for concern.

However, whatever the doctors concerns, if the aunt had not had mental capacity at the time the Lasting Power of Attorney, then it could not have been made in the first place.  So it follows logically that the aunt was deteriorating and at some point she would have lost capacity to make a new Last Will and testament.

The trick is to prove that she was beyond that point when she lost the mental capacity to make a Last Will at the time it was made – which is not easy.

In these cases there is often an element of “undue influence” – that is, someone has persuaded the person who is losing mental capacity (or mental strength sometimes) to change the Last Will in their favour.  The more extreme the change, the better the possibility of demonstrating undue influence.  So if the person was a minor beneficiary initially, and now gets everything, the chances of being able to persuade a judge of undue influence are improved.  But it is rarely easy and what may appear blindingly obvious to the family may not look so convincing in a Court.

Court action is likely to be extremely expensive, and prompt action is absolutely essential.  Please contact us urgently: the sooner you act, the greater the possibility of preserving some of the estate from being lost to lawyers fees.

Dickens wrote about the case of Jarndyce v Jarndyce which to quote from Wikepaedia “On 8 December 2012, the BBC QI series claimed that Jarndyce vs Jarndyce was based on the case of William Jennens from Acton, Suffolk and known as the Acton Miser.Jennens vs Jennens commenced in 1798 and was abandoned in 1915 (117 years later) when the legal fees had exhausted the Jennens estate of funds. Thus it had been ongoing for 55 years when Bleak House was published.

As of Jan 25, 2013, $755 million has been spent on dividing up the Nortel Networks estate worth an estimated 9 billion dollars with no resolution.”

Mental Capacity in making a Last Will.