Wills - Probate

Alzheimer's disease: Approval: Dementia: Elderly Testatrix: Expert Witnesses: Knowledge: Soundness of Mind: State of Mind: Testamentary Capacity: Testators.

An elderly testatrix who suffered at least mild to moderate Alzheimer-type dementia when she executed a will had testamentary capacity and knew, approved and understood the contents of the will.

(1) Frances Ray Hoff (2) Maxine Beagan (3) Gloria Wiechulla -v- Pauline Mary Atherton (2004)

Ch.D (Nicholas Warren QC) 6/2/2004

The claimants (C) sought a declaration that a 1994 will, of which the defendant (D) was the main beneficiary, was invalid. By her counterclaim D sought to have the 1994 will admitted to probate. The testator (K) died in March 2001 at the age of 89. She was twice widowed and had no children or close relatives. Under a will made in 1987, C was to receive the residue of K's estate. Two codicils were subsequently made in relation to that will. By a will made in June 1994 K revoked the 1987 will and codicils, and left the residue of her estate to D. C submitted that K was suffering from a moderate to severe degree of Alzheimer-type dementia at the time when she made the 1994 will and therefore lacked testamentary capacity.

HELD: By June 1994 K was suffering from at least mild to moderate Alzheimer-type dementia. There was a real doubt as to her testamentary capacity and D accordingly bore the burden of proving K's capacity. On the balance of probabilities K had testamentary capacity. K was capable of understanding the nature of a will and that the 1994 will gave the residue to D. The terms of the will lent support to the view that she was capable of understanding the claims of others to her bounty. Moreover, she was capable of understanding without the need for further explanation. K knew and approved the contents of the 1994 will. She knew, on the relevant occasion in June 1994, that she was executing a will.

Accordingly, the 1994 will was valid.

Judgement for the defendant

"Lawtel": 1.3.04