Does dementia mean no capacity?

 In Elderly/Vulnerable Client

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Will validity: capacity, knowledge and approval – Lloyd v Jones [2016] EWHC 1308

This case will be helpful to those seeking to prove a Will if it is known that the testator had dementia at the time of signing the Will. Although each case will turn on its own facts, here the judge sifted through conflicting evidence but was persuaded, particularly by impartial evidence, that the testator did have capacity and the requisite knowledge and approval, despite some fairly conclusive-looking evidence to the contrary. The fact that the Will terms were clear and simple, coupled with the fact that the main asset was a small farm which could not be divided or borrowed against to provide cash to leave to the other child, assisted.

The facts  Case Summary from LawSkills | Private Client specialist trainers

Doris Harris died on 10 Dec 2010 leaving two children: Sian Lloyd and John Harris (known as Ioan.  Doris left a Will dated 26 February 2005 which had been prepared, without any involvement of a solicitor, by her niece, Dr Hedydd Jones (Hedydd), a (now retired) GP. It was a simple Will and after appointing Hedydd and her husband as her executors, Doris left a legacy of £10,000 to Sian and the residue equally to Ioan and his wife, Kathy. Hedydd’s brother and sister in law witnessed the Will.

Doris’ estate was valued for probate purposes at just under £600,000. £575,000 of this was a farm in a remote part of South West Wales. Since her husband’s death, Doris had farmed it in partnership with Ioan and later Kathy. Part of the farmland was used as a caravan park.

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Sian challenged the Will for lack of capacity and want of knowledge and approval of its terms. Doris had not made any other Will so an intestacy would arise if the 2005 Will was found to be invalid.

Sian alleged that from 2001 her mother had suffered a mental decline. She and Ioan had discussed together their mother’s worsening memory and delusions about aliens landing at the farm. In May 2004 Doris collapsed and Sian claimed that on admittance to hospital she was found to be suffering from confusion, forgetfulness, aggression, strange delusions and had developed Alzheimer’s dementia.

In July 2005, within five months of signing her Will in the February, Doris’s sister, Sally, and Hedydd applied for attendance allowance stating that Doris was too ill to sign the form as she was suffering from dementia, glaucoma and delusions, having had memory loss for two years. She could not be left alone as she wandered and required supervision for all her needs. The death certificate showed the cause of death as bronchopneumonia and dementia.

With regard to knowledge and approval Sian alleged that the preparation of the Will by a relative without legal assistance excited suspicion. The Will was not read over to Doris who was unable to read it herself as she needed a magnifying glass due to her glaucoma and did not have it with her on the day she signed the Will.

Although Ioan and Kathy admitted that Doris began to suffer with Alzheimer’s dementia from around her hospital admission in 2004, other family members gave evidence that it was only from 2008 onwards. Doris and Sian had not been on good terms for many years, with Sian rarely visiting. Sally and Hedydd stated that they had exaggerated Doris’s condition, claiming that it was a reflection of her condition in 2004, in order to secure the attendance allowance and Doris had not been suffering from the stated conditions at that time of completing the form in 2005.

Hedydd stated that Doris had asked her to prepare her Will, and gave instructions as per the terms of the 2005 Will. Hedydd typed the document up herself and gave it to Doris to read when she came to Hedydd’s house on the day of its execution. Doris confirmed she was happy with it so Hedydd’s brother, Walwyn, and sister in law (who were asked beforehand by Doris to act as witnesses) went with Doris to a room on their own and the Will was executed. Both Hedydd and Walwyn said that Doris had been able to read her Will herself and used off the shelf reading glasses to read. She had these with her when she read over the Will.

Ioan said that he had not been aware beforehand that his mother was going to make a Will and only found out about it when she told him a few days after signing it. Both Walwyn and his wife gave evidence that Doris had been “tiptop” on the day of signing her Will and recalled that Doris signed first, followed by both of them, with Doris telling them where to sign. Neither could recall if Hedydd was present when the Will was executed.

The law

Capacity

The legal principles from Banks v Goodfellow (1870) LR 5 QB 549 applied and provide that:

It is essential that a testator shall:

  • understand the nature of the act and its effects;
  • understand the extent of the property of which he is disposing; and
  • be able to comprehend and appreciate the claims to which he should give effect, while not suffering from a disorder of the mind which prevents the exercise of his faculties and no insane delusion shall influence him.

Cooke HHJ accepted from the facts that real doubt had been raised over Doris’s capacity so Ioan and Kathy, as the propounders of the Will, had to satisfy the court that on the balance of probabilities Doris had the necessary capacity.

Knowledge and approval

Similarly, Ioan and Kathy had to demonstrate, again on the balance of probabilities, that Doris had knowledge and approval of the Will i.e. not only was she capable of understanding, but actually did understand, the nature and contents of the document she signed and that they represented her testamentary intentions. This was to be assessed on the basis of the evidence as a whole: Gill v Woodall [2010] EWCA Civ 1430.

The decision

Cooke HHJ reviewed extensive lay evidence on Doris’s capacity and knowledge and approval, with much disagreement amongst the family on these issues.

I bear in mind that if Mrs Harris was suffering from Alzheimer’s, it is a progressive and irreversible condition, but progression and severity of symptoms vary considerably between individuals and the essential question for the court will be whether in this particular case the effects on [Doris] by the date she executed the will were such that she lacked capacity at that time.

From the evidence given by Walwyn and his wife, Cooke said he was satisfied that Doris had told them both beforehand that she was intending to execute a Will when she asked them to be the witnesses. From their description of the signing when Doris told them where they were to sign, he was satisfied that Doris

knew and understood, both before and on the day, that she was signing a will. Further, I accept that when they went into the study Mrs Harris was already there with the will in front of her and was looking at it. She accordingly at least had the opportunity to read it.

Cooke did not accept Sian’s evidence that Doris was unable to read without a magnifying glass. He accepted the evidence of numerous witnesses, including family members, but also holidaymakers who had stayed at the caravan park, that Doris was a keen reader who sometimes, but not always used glasses. None had ever seen her using a magnifying glass. The Will was typed in large clear font.

“I find on the balance of probabilities that she was able to read the text of the will whether she did or did not have her glasses. Further, given that Dr Parry Jones had provided her with the will once it was typed and left her in the study to read it, and that Mrs Harris had done so at least to the extent that she was able to point out to Walwyn Parry Jones and Jackie Jones where she was going to sign and where they should sign, I infer that she had in fact read it before they all signed.

The above findings were relevant to the issues, but not conclusive so Cooke then went on to look further at whether Doris was suffering from a cognitive impairment when she had signed her Will.

Ioan accepted that Doris had begun to suffer from dementia from around May 2004 and her hospital admission. Cooke found that Hedydd stated on the attendance allowance form that Doris was suffering from dementia in July 2005 because this was the case, despite her claiming when giving evidence that this had been false and she had meant this was her condition at the time of the earlier hospital admission.

I proceed therefore on the basis that, as pleaded, Mrs Harris was suffering from dementia no later than May 2004, and the question is how far that was affecting her by the time she signed the will in February 2005.

Although Hedydd was Doris’s niece she had also been her GP too, despite GMC guidance that it was inappropriate to look after family members. She explained that this was on the basis that there was no other practice nearby. Hedydd had not kept full written notes and often prescribed medication on her frequent visits to her aunt at the farm. Cooke treated the lack of any mention in the notes until 2008 of any memory problems, as not being a strong indication of a lack of memory problems prior to 2008 due to the poor nature of the notes.

There were notes from Doris’s 2004 admittance to hospital which recorded her cognition as ‘normal’ on one day and ‘slightly confused’ on the next. Sian had insisted on a referral to Social Services, but the referral made no mention of any mental health issues or concerns. Hedydd and Ioan later cancelled a planned visit by a social worker on the basis that there were no problems.

Cooke found that the hospital notes and referral to Social Services showed disagreement between Sian and Ioan at that time and that Hedydd was prepared to take Ioan’s side, but not that there was then any significant mental decline.

Family witnesses called by Ioan all denied Doris was hallucinating or suffering from any form of mental decline in 2005, other than normal ageing. Regular holidaymakers who knew Doris gave similar evidence; some only noticing a slight decline from the summer of 2006 but all a more marked decline from 2008 onwards. A council paths officer had negotiated with Doris between 2004 and July 2006 regarding a proposed new footpath and said he had not found her confused at any time.

When looking at whether the terms of the Will represented Doris’s testamentary intentions, Cook noted that two long standing holidaymaker couples said that as early as 1992, Doris had said that she would leave the farm to Ioan and she repeated this regularly. Other family members said this too. Cooke mentioned that the farm would not be economic if split. Cooke was satisfied that relations between Sian and her mother were not as good as they could have been. There was also documentary evidence from several sources that Doris intended Ioan to have the farm.

Sian’s medical expert reviewed the medical records, various witness statements and the attendance allowance claim form as he had not seen Doris during her lifetime. It was his view in his first report that Doris would have been unlikely to have adequate testamentary capacity. However he changed his view in his second report after Sally and Hedydd had confirmed that their description of Doris’ condition on the attendance allowance application in July 2005 had been exaggerated and false. There was then insufficient evidence of Doris’s dementia to support his initial view of a lack of testamentary capacity.

Cooke found that Doris did suffer from time to time from delusions, but that they did not affect her testamentary capacity.

Nor does wandering of itself necessarily indicate a loss of understanding such that Mrs Harris would have fallen below the threshold of capacity set out in Banks v Goodfellow.

“Taking account of the evidence [as] a whole, and giving particular weight to the evidence of the non-family witnesses of their conversations and other dealings with Mrs Harris, I am satisfied that until at least the middle of 2006, and probably into 2007, she retained capacity to understand, and did understand, the matters essential to an effective testamentary disposition.” He was therefore satisfied of her capacity to make a Will.

Cooke was satisfied that Doris understood that the document she was signing was a Will, that she would not have signed it without reading it and that she would have understood its short, simple and clear provisions. He was therefore satisfied of her knowledge and approval of it.

He finished with a reminder that:

It is not the function of the court to form any judgment about the appropriateness of the distribution she chose to make, but only to be satisfied that [Doris] was capable of making a will and that its contents do reflect her intentions in accordance with the tests I have set out above. However disappointing the result is to Sian, the will made by her mother was valid and her claim must be dismissed.

Practice points

  1. When the issue of lack of capacity is raised, the propounder of the Will should obtain as much evidence as possible, from as many impartial people as possible, of the testator still having capacity at the time of the execution of the Will. Cooke was clearly persuaded by the numerous impartial regular holidaymakers and the council officer in this case.
  1. Even if it is known that the testator had dementia, evidence must persuade the judge that its severity was such that the testator lacked capacity and knowledge and approval.
  1. The more short, simple and clear the terms of the Will are, the less difficult it is to show the necessary understanding of its terms by the testator.
  1. Although in this case no solicitor was involved, if a client wants to leave one child out of their Will or make unequal provision for them, probe carefully as to the reason for this. Without knowing the family it can be very hard to judge matters, but do what you can to ascertain the whole picture.
  1. If the main asset is a farm and the testator wants to leave it all to one child (perhaps to the one involved in the running of it), question whether the farm could be divided and run as smaller farms or capital obtained by way of mortgage in order to make provision for children who do not initially benefit.

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