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Dementia ‘driving up will disputes’

Legal experts say that people hiding their dementia due to the stigma of mental illness could be helping to fuel an increase in will disputes.

Law firm Irwin Mitchell said on 8 December that in 2014 it had seen a 53 per cent increase in the number of will dispute cases where it was claimed that someone lacked the mental capacity to make or alter their will.

For a will to be valid, the person making it must have had testamentary capacity. which means they:

  • must understand what a will is and what it is for 
  • must understand what assets they are distributing
  • must appreciate the claims of those who might expect to be left something in the will
  • are not affected by a mental illness that affects their judgment regarding the way they dispose of their estate.

Irwin Mitchell solicitor Julia Burns said: “People are living longer than previous generations so more and more people are being affected by mental illnesses such as dementia. This is giving rise to a massive increase in the number of people who are disputing wills on the basis that the person making it did not have the capacity to create a valid legal document.

“Some of these claims relate to wills which were made by people who didn’t know they were suffering with dementia at the time, but many also involve people who didn’t tell anyone about their illness, and will writers/solicitors who were not doing their job properly and have not asked the appropriate questions to test their mental state.

“In some cases, it is simply not obvious that someone’s mental capacity is impaired.  There are also cases where a person with dementia has learnt to put up a very plausible social façade to cover up their illness. It can be difficult to penetrate that if questions are not asked in a skilful way when taking instructions for a will.

“Other claims relate to family, friends and acquaintances who have tried to take advantage of someone suffering from dementia.”

In October 2014, a report published by the International Longevity Centre UK think tank found that at least one in four people hide their diagnosis of dementia, citing stigma as the reason.

Cohabitation law reform moves forward

A move to give cohabiting couples greater protection from “economic unfairness” when they separate has taken another step forward.

Liberal Democrat peer Lord Marks’ Cohabitation Rights Bill had its second reading in the House of Lords on 12 December and will now progress to its committee stage, a line by line examination of the contents, which has yet to be scheduled.

He told the Lords: “I make it clear at the outset that the Bill’s proposals do not equate cohabitation with marriage – far from it.

“That does not mean that where a cohabiting relationship breaks down, there should not be a mechanism to adjust the economic impact of the relationship so as to share it more fairly between the parties. The Bill’s proposals aim to address economic unfairness at the end of a relationship that has enriched one party and impoverished the other in a way that demands redress.”

Provisions of the Bill include giving former partners the right to apply for a financial settlement within two years of their cohabiting relationship ending and enabling one partner in a cohabiting couple to inherit an interest in the other’s estate should they die without making a will. Under current intestacy law, cohabiting partners are excluded from any automatic inheritance.

Family law body Resolution, which advocates a non-confrontational, collaborative approach to resolving family disputes, has welcomed the Bill.

Steve Kirwan, who leads Resolution’s work on cohabitation law reform, said: “More couples are living together than ever before, with an estimated 2,859,000 cohabiting households in Britain – that’s a significant portion of the country who are currently served by outdated and unfair laws. “

Resolution has proposed a new cohabitation law that goes further than Lord Marks’ proposals. It has called for cohabitants meeting eligibility criteria indicating a committed relationship, such as having lived together as a couple for a minimum period or having a child together, to have the right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to opt out.

Graeme Fraser from Resolution’s cohabitation committee added: “In the continued absence of automatic legal protection, cohabitants should seek legal advice about their position at significant points in their relationship, not just when the relationship breaks down, but when a property is being purchased for their occupation, and to ensure fairness on death.”

Move set to curb holiday pay claim costs

The government has introduced new measures to reduce potential costs to employers and to clarify workers’ rights following a ruling on holiday pay.

In November 2014, an employment appeal tribunal decided that holiday pay should reflect non-guaranteed overtime – overtime that employers are not obliged to offer but a worker must work if it is offered.

The government announced on 18 December that it was taking action to protect UK employers from the potentially damaging impact of large backdated claims.

Changes made to regulations under the Employment Rights Act 1996 will mean that claims to employment tribunals on the issue cannot go back further than two years.

Workers will be able to make claims under the existing arrangements for the next six months, which will act as a transition period before the new rules come into force. The changes will apply to claims made on or after 1 July 2015.

A taskforce set up by the government after the employment appeal tribunal issued the ruling is continuing its work to assess employers’ financial exposure and how to limit the impact on businesses.