The Python, Dementia and The Will

It has recently been reported in the press (The Times 2 October 2021) that the estate of Terry Jones the much loved Monty Python star who died in January 2020 and his second wife Anna S?derstr?m’s entitlement (she is thought to be the main beneficiary of the estate), is being contested in an action in the High Court by his adult children from his first marriage.?The claim being made is that their late father, who updated his will in 2016, lacked the capacity to do so, following his well documented diagnosis of a rare type of dementia called frontotemporal dementia.

There is currently very little detail available, but the burden sits with the claimants to provide sufficient evidence to prove he lacked capacity and potentially seek to reinstate a previous will made by the actor which will have been revoked by the updated version in 2016.?The Wills Act 1837 provides a presumption in favour of testamentary capacity provided specific formalities are complied with, which is why the ‘disappointed beneficiaries’ have the task of demonstrating otherwise.

The test for such capacity is laid down in an equally ancient case of Banks and Goodfellow (1870), such test to have been confirmed by the Court of Appeal this year in Clitheroe v Bond (2021) where it was stated that a testator has capacity if:

·????????They understand the nature of making a will and the effect of the document;

·????????They understand the extent of their own property and the assets they own;

·????????They understand which people they should consider benefiting under the will and indeed provide an explanation of any controversial bequests;

·????????They are not affected by any disorder of the mind or insane delusions.

Taking into account the fourth requirement, does this mean the latest will is doomed to failure??What about the 850,000 people in the UK currently living with dementia; are they excluded from making or updating their will?

The only way that this question can be answered is to apply the facts and circumstances of the individual case.?That may not seem a helpful response and a typically woolly legal reply, but it is more positive than it sounds.?If there were to be a blanket exclusion for anyone with a diagnosis of dementia or other similar condition, this would fail to recognise the nuances of the disease and indeed the extent to which the impairment impacts the sufferer.?Some dementia sufferers are more than capable of understanding the extent of their estate, to whom they wish to leave their assets and the impact of them doing so.?Clearly the more significant and complex the estate and the more advanced the disease the more likely a claim by a ‘disappointed beneficiary’ is to be successful.

However, this is not an easy path for any such claimant to tread.?Courts are loathe to set aside Wills made on the basis of lack of testamentary capacity. Undoubtedly medical experts and competent solicitors will all have been on hand when Terry Jones last Will was created and signed.?Experts called in the course of litigation can provide an opinion, but of course any evidence and reports are limited by the fact that they are unable to assess the testator’s capacity at the time of making the will.

So if the above scenario resonates with you or a family member, all is not necessarily lost.?If you have questions surrounding mental capacity, speak to your GP and to a Will Specialist in person.?Instructions for wills can be taken and progressed in a timely fashion to provide peace of mind that your instructions can be carried out.?We will be watching the development of this case with interest but remember whilst “Nobody expects the Spanish Inquisition” the costs of defending a claim will be borne by the estate, with professional fees never being the intended beneficiary.