Everyone knows how fallible memory can be and also how easy it is to come to believe things that are not true. Normally, such aberrations are of little consequence, but they played a part in a recent case in which the will of a woman who suffered from Alzheimer’s disease was disputed on various grounds, including the obvious ground that she lacked the mental capacity to write a will.

The woman had changed an earlier will so as to leave her entire estate to her elder son, because she had ceased having contact with her younger son some time before. The younger son sought to have the new will ruled invalid.

One of the grounds for his challenge was that the will had not been properly witnessed. One of the witnesses claimed to have signed it without the woman who made it being present. However, the judge concluded that the witness had simply suffered a lapse of memory.

The elder son had attempted to do everything the right way. He had engaged an expert psycho-geriatrician, who gave evidence that when the woman had created her will she was mentally competent enough to understand it and its implications and had approved it as drafted.

One salient fact which might have impacted on the decision but did not was that the psycho-geriatrician did not receive a wholly appropriate letter of instruction regarding his examination of the woman.

The argument over whether or not she had the mental capacity to make a will at all was founded on the younger son’s claim that his mother believed things about him that were not true, in particular that he had initiated a police enquiry into her finances and the elder son’s involvement with them.

The judge did not find that the deceased’s belief in this regard was irrational or delusional; rather it was a misunderstanding. He therefore refused to rule that the changes to the will were founded on a delusion, concluding instead that the woman’s view was the result of a ‘confabulation’ – the invention of circumstantial or fictitious detail in order to ‘fill gaps’ in one’s memory.

Accepting that the psycho-geriatrician’s evidence, although technically flawed, supported the elder son’s argument that his mother had been mentally competent when she made her new will, the court rejected the younger son’s challenge.


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