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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.