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Disputed will of testatrix with dementia is valid

Elderly people may bequeath property as desired even with reduced mental capacity, rules judge

14 June 2013

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A mother's estate should be divided as specified in her last will, despite her suffering from mild to moderate dementia when she amended it, the High Court has ruled.

Constance Simon had drafted various wills that benefited her four children, Jonathan, Hilary, Robert and David, and latterly her housekeeper. One version also left shares in the family business and a property to Robert.

The will was updated in 2005 to give her children equal portions of the estate again. By this time, Constance had dementia. Robert disputed the amendment on grounds of her capacity but the court decided Constance had known and approved the contents of her 2005 will.

"The law upholds the right of elderly people to leave their property as they choose, even if their mental faculties have declined considerably," ruled deputy judge Nicholas Strauss QC in In the estate of Constance Rose Simon deceased (probate) [2013] EWHC 1490 (Ch).

Constance made a will in 1978 leaving her St John's Wood house - valued at £1.75m at the time of her death - a flat in Westcliff on Sea, savings and shares in the business her husband founded to her children.

By 1992, her will included a sum to her long-standing assistant and housekeeper.

In 1994, she bequeathed the 16 shares in the family company and the Westcliff flat to Robert, and divided the remainder equally between her four children. This was repeated in her 1996 will.

During 2004, there was disagreement in the family about Robert's management of the family business. There was also concern about minimising inheritance tax from Hilary and David. Hilary also became aware that her mother's will did not divide property equally.

The 2005 will was drawn up at Constance's 88th birthday party, which was attended by Hilary and John but not Robert. David had died in 2004.

Strauss QC heard witnesses describe Constance's "good" and "bad" days - her 88th birthday being a "good" one - and said the evidence rebuffed the possibility of "a concerted plan… to persuade Mrs Simon to make a gift and to change her will…" at the event.

He said: "I think it likely that Hilary intended beforehand to raise the question of avoiding inheritance tax by a gift, and that, contrary to her evidence, she deliberately raised the issue about the will after supper.

"But I do not think that there was premeditation by anyone else, or that, having raised these issues, she or anyone else put any pressure on Mrs Simon; on the contrary, Mrs Simon made the running."

The deputy judge concluded that Constance took a "conscious decision, consistent with her lifelong philosophy".

He said: "She was reminded of the previous, unequal, will and could have asked to see it to remind herself of its provisions. So in my view she was capable of accessing the information, which she would have understood, but chose not to do so.

"Also, as I have found, she did actually understand that her previous will benefited Robert in some way, but now wished to treat her four children equally."

The Mental Capacity Act 2005 did not apply because it was only fully enforced on 1 October 2007 and is not retrospective.

 

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