Henry Frydenson answers a question on how Dementia affects the validity of a Will

Q.  My aunt wrote a will in 1998 and left £500 to my cousin's now ex-wife.

As the divorce was unpleasant and we do not know the ex-wife's whereabouts, my aunt does not want her to have the cash now. My aunt, however, is unable to make a new will as she has dementia.

As the executor and the next of kin, can I decide not to give her this cash?

A.  You say your aunt is unable to make a new will on account of dementia, but also that she no longer wishes to leave the £500 to your cousin's ex-wife - but these two statements are inconsistent.

Henry Frydenson, consultant at solicitors Mishcon de Reya, says: "You do not say when your aunt was found to be suffering with dementia. If she has dementia of such magnitude she is unable to make a new will, how is she able to have the necessary mental capacity to say she does not want the cousin's ex-wife to have the £500 bequest? It sounds as if the view being expressed is of other family members and not of the unwell aunt.

"The primary duty of the executor is to carry out the terms of the person who created the will - assuming she had the required mental capacity when she made her 1998 will. When a person has lost that capacity, they cannot draw up a further will. In appropriate circumstances one might consider an application to the Court of Protection for the drawing up of a Statutory Will if the creator lacked capacity. But here the amount of money involved would not justify the cost of such an application.

"When the aunt has passed away, the executor would need to make reasonable enquiries to try to ascertain the whereabouts of the cousin's ex-wife. If one year after the death of the person who made the will the beneficiary's whereabouts still can't be established, you could take out insurance against her turning up, or ask for an indemnity from the beneficiary of the residue of the estate."

If you take latter course, you don't need to delay winding up the estate. If however the ex-wife turned up, you could
get the £500 back and hand it back.

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