The recent case of Lloyd v Jones  has raised the issue of whether suffering from dementia, confusion, forgetfulness, aggression, memory loss and delusion automatically means a lack of testamentary capacity when making a Will.
In this case, Doris Harris, an elderly farmer, executed her last will and testament in February 2005 (“the 2005 Will”). The Will was prepared by her niece and Mrs Harris left her daughter, Sian Lloyd, £10,000 and the Residuary Estate (circa £600,000) to her son, John Harris and his wife.
As the majority of Mrs Harris’s Estate was the family farming business in Wales, which was in partnership with John Harris and his wife (Sian Lloyd had married and moved to England), the content of the 2005 Will was unsurprising.
However, Sian Lloyd issued Court Proceedings on the ground of lack of testamentary capacity and want of knowledge and approval. This was on the basis that Mrs Harris started to suffer a mental decline from 2001 onwards. In or around May 2004, Mrs Harris collapsed and was admitted to hospital. It was clear that she was “suffering from confusion, forgetfulness, aggression, strange delusions and had developed Alzheimer’s dementia”.
This was supported by an expert who testified that Mrs Harris was probably suffering from moderate to severe dementia and it was unlikely she had sufficient testamentary capacity at the time of signing her 2005 Will.
The Judge held that this all presented a real doubt as to Mrs Harris’s testamentary capacity. Therefore the burden of proof shifted to John Harris to show that, on the balance of probabilities, Mrs Harris had the requisite testamentary capacity.
After hearing all the evidence, the Judge was satisfied that Mrs Harris had “until at least the middle of 2006, and probably into 2007… retained capacity to understand, and did understand, the matters essential to an effective testamentary disposition” and that Mrs Harris had the necessary capacity to make the 2005 Will and understood its terms. The 2005 Will was therefore declared valid.
This highlights the reluctance of the Court when it comes to setting aside the testator’s true wishes and in dealing with a validity challenge.