A Diagnosis of Dementia Does Not Necessarily Equate to a Loss of Capacity


Occasional episodes of forgetfulness, or even a formal diagnosis of dementia, do not necessarily mean that a person lacks the mental capacity required to make important decisions. The High Court made that point in finding that a pensioner acted as a free agent when he made a six-figure gift to one of his children.

By his will, the man bequeathed his estate, which had a net value of about £230,000, equally to his three children. He had, about two years before he died, gifted £200,000 from his bank account to one of his daughters. After he died, her sister challenged the validity of the gift and sought an order requiring her to pay the money back into their father’s estate so that it could be divided in accordance with his will.

In asserting that her father lacked the mental capacity to make the gift, the sister pointed out that he had by then been diagnosed with dementia and was becoming increasingly frail and confused. She further contended that the daughter, with whom he had only recently been reconciled, had exerted undue influence over him.

Rejecting the sister’s case, however, the Court noted that a diagnosis of dementia does not equate to a blanket assessment of incapacity and occasional bouts of forgetfulness do not do so either. The evidence suggested that medication had improved his condition and the sister had failed to establish on the balance of probabilities that he lacked the capacity to make the gift.

The Court noted that he made the gift to assist the daughter in exercising her right to buy her council home. That was, on the face of it, a sound proposition. Although the gift represented about 45 per cent of his total assets, he was a careful and frugal man and there was no evidence that his generosity compromised his ability to fund his own day-to-day expenses.

The gift to the daughter clearly resulted in inequality and impacted on the inheritance prospects of the other two children. There was, however, nothing to prevent him from reallocating his resources as he chose, thereby favouring one child over the others. Substantial assets remained in the estate, in which all three siblings would share.

The gift was not so unusual or suspicious as to be only explicable on the basis that it had been procured by undue influence. The dementia diagnosis did not, by itself, support a conclusion that he was so vulnerable that the daughter had attained a dominating or ascendant influence over him when he made the gift.

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