25 February 2014 by

The Marbles are not always lost

A surprising decision in relation to testamentary capacity was made by the High Court in the recent case of Simon v Bayford, Woolley, Simon, Ford and Simon [2013] EWHC 1490 (Ch) and just goes to show the difficulties in challenging a Will.

This case involved the late Mrs Simon who died in 2009 aged 91. It was found that Mrs Simon had capacity to make a Will despite:

  • Suffering from dementia,
  • Being unable to remember the terms of her previous Wills,
  • Being unable to remember the reason for preferring one beneficiary over another in her earlier Wills

Evidence produced during the case confirmed that Mrs Simon had got lost around the house, talked to the television and mirrors, tried to get into a strangers car, was unable to remember that one of her children had passed away and repeatedly commented that her “brain box” was not working.

Mrs Simon’s GP had given evidence that she had lost capacity over a year before making her Will and would not have been able to understand the process of making a Will.

At the time that Mrs Simon made her Will she was suffering from mild to moderate dementia and a number of physical illnesses including diabetes, back, heart and bladder problems and being unable to walk unaided.

Her Wills varied significantly. The first Will left the sum of £20,000 to her housekeeper, gave the shareholding in a company founded by her late husband and a flat in Westcliff on Sea to her son Robert and then divided the remainder of the estate between her four children equally.

The second Will left the sum of £20,000 to the housekeeper but divided all of the remaining assets between her surviving 3 children and the family of her fourth child, who had sadly died previously.

Robert challenged the later Will on the basis that his mother did not have capacity at the time she made her new Will.

It was clear from the facts of the case that the deceased could not remember why she had wanted to give more to Robert.

As part of his evidence Robert produced a letter in which the deceased set out the reasons for the earlier Will including that Robert had been mainly responsible for the success of the company and that she had made various gifts to her other children so the inclusion of the flat being passed to Robert was to ensure they all received the same.

The last Will was made at a birthday party which Robert was unable to attend. The Will was discussed and the deceased’s daughter mentioned that it did not leave the estate equally between the family and offered to take her mother to a solicitor to amend it. The deceased had wanted to change the Will immediately and therefore a new Will was prepared there and then.

Robert argued that the failure to remember the reasons for the earlier Will were essential, in order for the deceased to reasonably consider who she should leave her assets to.

The judge rejected Robert’s argument and did not agree that the failure to remember why she had made the decision to leave him more in her earlier Will meant she lacked capacity.

The judge also felt that because Mrs Simon was aware that the earlier Will gave more to Robert than the others, she had considered the division of her estate sufficiently.

The basis for this decision was that even those suffering from dementia have good days and bad days; it is not the case that a person with dementia is never capable of making a Will; everyone is capable of having “lucid intervals.”

The judge was satisfied that during the party at which the Will was made Mrs Simon was in the middle of a “lucid interval” and therefore had capacity. He was satisfied that the evidence of those present at the party was crucial to this finding.

This decision just goes to show that even the strongest of cases on paper may not succeed when matters progress to Court and that sometimes even when we are convinced someone has lost their marbles; they may just be misplaced temporarily.

If you wish to challenge a Will, or if you are an executor or beneficiary of a Will that is being challenged please contact us to arrange an appointment. 

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