One case in point is the recent challenge to the will of interior designer Michael Inchbald. The designer’s £20 million estate, which includes one of London’s grandest private houses in Kensington and a collection of valuable antique clocks, is disputed by his children – son Courtenay, 57, and daughter Amanda, 56.
The designer, who worked on the QE2, Claridge’s and the Savoy Hotel, died in 2013 at the age of 92. His 2007 will split his estate, apart from a few gifts, equally between his two children.
It replaced a will made two years earlier where Amanda’s share was put in a trust from which she received an income for life. The capital sum was to revert to her brother and his family when she died.
Richard Wilson QC, Courtenay’s lawyer, said Mr Inchbald didn’t understand the change to his will made in 2007 because he was suffering from dementia. He also claimed that Amanda and Courtenay’s mother, Mrs Duncan who was divorced from Mr Inchbald, was instrumental in the change because she is closer to her daughter.
Mr Inchbald hadn’t wanted to leave all the money to his daughter, Courtenay said, because he didn’t think she could “deal with it”.
Speaking on behalf of Amanda Duncan, Peter John said that there were “poor relations” within the family, but an equal split was not unusual. He said the motive for Courtenay Inchbald’s counter claim was unclear, other than wanting to place himself in a position of control over his sister.
In an article on access legal, lawyer Adam Draper says the case is similar to many others. In the Inchbald case, the key issue for the courts is to decide to what extent Michael Inchbald’s capacity had declined by 2007 when the second will was made.
The court has to consider the medical evidence, the evidence of the solicitor who took the instructions for the will and evidence from relevant witnesses.
Draper notes that it is notoriously difficult to prove capacity and that many expert legal bodies have called for better training to help solicitors identify capacity issues when wills are made in order to counter the growing trend of contesting wills on the basis of lack of testamentary capacity.
It is helpful if lawyers drafting wills are familiar with applications for lasting power of attorney or how to deal with the Court of Protection. Most successful challenges to wills, Draper says, do not dispute the validity, but the lack of financial provision for a person’s dependents in the will according to the Inheritance (Provision for Family and Dependents) Act 1975.
To make a claim under this act,the claimant needs to show a direct connection, financial dependency or relationship with the deceased person that allows for “reasonably financial provision”.
Strange or unwise decisions are not evidence of lack of capacity merely evidence of an unwise decision and everyone can make those.
Wills need to be updated regularly, Draper says, and if you or a loved one is diagnosed with dementia or Alzheimer’s, specialist advice should be sought as soon as possible.