It seems that the challenging of Wills by people is never out of the press. It is also clear that the number of children challenging Wills is on the rise. There have been a number of high profile cases in the last 2 years. The latest challenge to be heard in court, though not yet decided, concerns Sam James. He is suing his mum Sandra, who is 79, claiming that she forced his dad who was suffering from dementia to change his Will in her favour. The new Will cut him out completely. He claims that his father’s dementia was so far advanced that he simply did not have the capacity to make a new Will.
Mr James’ argument is that he worked hard on the family farm and continued to do work on the farm on the basis of assurances given to him by his dad. The assurance was that he would inherit the family farm Pennymore. The mother, Mrs Sandra James, says he was never promised the farm. She objects to being portrayed as money grabbing but agrees her son worked very hard on the farm. There are also 2 sisters who agree with mum.
Two Wills were drafted, one in 2004, initiated by son and then again in 2012, initiated by mum. The circumstances surrounding each Will are equally questionable for lots of reasons. I don’t know all the facts but I am amazed how families don’t communicate and reach a more harmonious conclusion. The arguments of mum and son are equally persuasive for different reasons. The outcome of the case has yet to be decided. The two issues for me are as follows:
In short it is possible to make a Will if you have dementia but this will all depend on how advanced the dementia is. I see many clients who have just been diagnosed in the very early stages of dementia and are quite capable of making a Will. There are families who bring mum or dad to “make a Will” because they realise the consequences of not making one.
Sometimes they are too late and it is clear that mum or dad does not have capacity. Other times it can be borderline. If this is the case then we as solicitors need to ensure that capacity is present. This is often called the “Golden Rule”. When in doubt it is worth asking the person’s GP for an opinion in the first instance. The GP may recommend further tests. When a situation like appears the importance of the notes taken at the initial meeting are vital, particularly if they will be used in court later when families fall out with each other.
You would think so wouldn’t you? If this were the absolute truth then there would be no court cases and it would simply be tough for those who did not inherit. I find myself asking more questions like “Is there anyone who be upset by them not being included in the Will?” or “How will your children feel if you don’t treat them all equally?”
As a lawyer you have to be quite direct with your clients when assessing people’s motives for excluding children from their Wills. I have to advise them that a child could claim believing that it was reasonable for him or her to inherit and that this could be costly. It used to be that a token gift was left to the excluded child with a letter of wishes explaining why they have been left out but this does not cut the mustard any more and is frequently challenged. Children, when left a token often feel further insulted by the “token gesture”.
First and foremost talk to each other before events get out of hand. Sounds simple but it makes logical sense. Take professional advice and be 100% clear about the impact of your Will could have on your spouse and children and the long term impact on family relations. Review your Will at least every 5 years particularly if your circumstances change such as divorce or having children. If you have not got a Will then make one sooner rather than later and don’t leave it to the last minute. Be fair and reasonable and let your family know your intentions where possible.
If you would like sound advice and need to make a Will then either call me, Eilish Adams on 020 3150 2525 or email me at email@example.com