Dementia secrecy leading to more contested wills

There has been a 53 per cent rise in wills being contested on the grounds that the person who made the will lacked the mental capacity to do so, Irwin Mitchell has reported.

Irwin Mitchell believes that the stigma associated with mental illness leads some people to hide their dementia, which encourages friends and family to challenge the validly of the will.

The firm also reports that as well as dementia, complex family lives, rising house prices, DIY wills and an ageing population have also contributed to the firm receiving 70 new enquiries a month.

Julia Burns, a specialist solicitor in the will, trust and estate disputes team at Irwin Mitchell commented: "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."

She continued: "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."

Dementia currently affects 1 in 14 people over the age of 65 and 1 in 6 over the age of 80. It is expected that more than 1m people will be diagnosed with the illness in the UK by 2020.

Vulnerable clients

Burns added that because dementia puts sufferers in a vulnerable position where they can be taken advantage of, it is not uncommon for them to be negatively influenced.

She said: "Other claims relate to family, friends and acquaintances who have tried to take advantage of someone suffering from dementia. People with dementia are extremely vulnerable to being influenced in terms of their finances and the contents of their wills, which can lead to people being taken advantage of and will disputes following their death.

"Sadly it is often only when that person dies that other people in their life realise that someone is seeking to benefit from their illness and that the will doesn't reflect what they believed to be the wishes of the deceased."

If a mental illness sufferer actively attempts to hide their symptoms and act as they normally would, it can often be very difficult to deduce that they are unwell.

Burns believes that solicitors have a greater role to play in this area, and need to be more vigilant and ask the right questions in order to establish if someone truly has mental capacity.

"Part of a solicitor or will writer's duty is to check that the person making a will is of sound mind and understands the consequences of their actions, but sadly the appropriate tests are not always being carried out," Burns said.

She added: "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 facade 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."

Binyamin Ali is assistant editor of Private Client Adviser