change of will for someone with dementia

[gogsy]

Hi i am writing on behalf of a friend to seek some advice.
My friends mother was diagnosed with dementia when she was in her late 80s about three years ago .She had three children. Her will at this time was to leave her estate to her three childen and if dead then their children, being her grandchildren should any of her children die before her.
Two years ago one of the three children died and a month later the two surviving children , presumably took their mother to a solicitor to have the will changed so that the desendants of their dead brother was removed from her will and that her estate be divided only between the two remaining children.
My friends mother died in December 2023 and it was then discovered that the will had been changed as mentioned above.
So the questions are
Should the two surviving children have told their solicitor that their mother had dementia.
If the answer was yes then what extra steps should their solictor have taken to ensure she was not coereced into signing the change to her will and to ensure she was fully aware of the hurt that would likely be caused to her two grandchildren who had lost their father.

 

[Palerider]

Hi i am writing on behalf of a friend to seek some advice.
My friends mother was diagnosed with dementia when she was in her late 80s about three years ago .She had three children. Her will at this time was to leave her estate to her three childen and if dead then their children, being her grandchildren should any of her children die before her.
Two years ago one of the three children died and a month later the two surviving children , presumably took their mother to a solicitor to have the will changed so that the desendants of their dead brother was removed from her will and that her estate be divided only between the two remaining children.
My friends mother died in December 2023 and it was then discovered that the will had been changed as mentioned above.
So the questions are
Should the two surviving children have told their solicitor that their mother had dementia.
If the answer was yes then what extra steps should their solictor have taken to ensure she was not coereced into signing the change to her will and to ensure she was fully aware of the hurt that would likely be caused to her two grandchildren who had lost their father.

In short yes the surviving children should have told the solicitor that their client has dementia. Its so important to be honest about these things so the solicitor can protect the person's wishes where they can or at the very least act in their best interests. My mum changed her Will and the solicitor was made aware of her dementia who then went about satisfying himself that she had capacity to change the Will otherwise there is a strong possibility it could be contested not to mention the need to ensure there was no coercion. It may be that the solicitor did undertake some query into capacity anyway -you'd have to ask if this was done or things taken at face value.

 

[gogsy]

In short yes the surviving children should have told the solicitor that their client has dementia. Its so important to be honest about these things so the solicitor can protect the person's wishes where they can or at the very least act in their best interests. My mum changed her Will and the solicitor was made aware of her dementia who then went about satisfying himself that she had capacity to change the Will otherwise there is a strong possibility it could be contested not to mention the need to ensure there was no coercion. It may be that the solicitor did undertake some query into capacity anyway -you'd have to ask if this was done or things taken at face value.

 

[gogsy]

thanks that is useful and supports my friends position

 

[Ellie2018]

Two things come to mind, if the solicitor was told about the dementia, it’s likely they would have done something to check capacity - we have family dynamics and the solicitor engaged a doctor to confirm capacity - at our cost of course. And I have just spoken to a solicitor about my will and I am leaving someone out so the solicitor suggested that I write something in to say why and then it would be clear that it wasn’t a mistake. I’d expect the same suggestion if they knew.

 

[nitram]

a month later the two surviving children , presumably took their mother to a solicitor to have the will changed so that the desendants of their dead brother was removed from her will and that her estate be divided only between the two remaining children

If your assumption that the sisters took their mother to the solicitor and mother requested the will be changed in their favour and given mothers age (.."she was in her late 80s about three years ago"..) I would expect the solicitor to be very vigilant regarding her capacity whether or not dementia was mentioned.

 

[JHA]

I would hope that the solicitor ensured that your friends mother knew exactly what she was doing.

Off topic slightly but the scenario you mentioned was similar to my own. My dad died before both of his parents. My grandpa's will split everything between my dad and his two sisters with my dads share coming to me if anything happened to him - I was the only grandchild. Two days after my dads funeral his one sister took my grandpa to the Solicitor to alter his will so that is was only split two ways - apparently my grandpa was assured that they would give me 'something'.

 

[northumbrian_k]

My experience was that my wife was not able to change her Will as her GP could not confirm that she was competent to do so. On that basis, - and following due diligence - our solicitor was unable to accept her instructions.

 

[Graybiker]

I’m sorry to hear of your friend’s troubles and loss, that must be very distressing.
My dad has dementia & before he even had a diagnosis he wanted to change his will. I was reluctant to help as I knew from what he’d said it would be in favour of me & that could cause problems. However, over a number of weeks, he was very insistent that I send the letter so I did. I also informed the solicitors that dad likely has dementia, very little short term memory. They told me that as long as they were convinced he was sure of what he wanted to do at the time, it wasn’t important that he might not remember later.
They arranged to come to his home & asked me not to be there while they were present, 2 people came. I let them in the house then left. He was sent a new will, which I have not read, but it seems they were satisfied with his reasons to alter it & his capacity to make that decision.
I’m not sure if this is helpful but yes, I did make them aware of dad’s condition at the time , I felt it was very important they know..
I wish your friend all the best
x

 

[NickP]

I'm sorry to hear about your friend's situation.
My mother in law doesn't have a diagnosis of dementia, but does have 'mild cognitive decline' and scored above the threshold for dementia on ACE III. She has many behaviours and challenges that suggest to us that she does have dementia, including signficant paranoia. Anyway, she decided to change her will (as a result of paranoia and imagined issues such as various family members trying to kill her (they're not) and others stealing from her (also not happening); we raised concerns about her abiity to do so, and the solicitor said she had judged her to be ok. All was going ahead until MIL started sending the solicitor emails telling her to back off/ she didn't know who she was/ she hadn't asked her to be involved etc. Solicitor put a temporary stop to it all and commissioned a mental capacity assessment (at a cost to MIL of course). To our astonishment, this came back ok and the will was agreed and finalised.
Whether we agree with the outcome or not, the solicitor did the right thing - and the same should have happened in your friend's situation too.