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Can people with dementia make a Will?

Can people with dementia make a Will?

When people are diagnosed with dementia, they often look to put their affairs in order and one of the things that is high on the list is making a Will.

Just because someone has dementia doesn’t mean that they can’t make a Will.

What matters is if the person concerned can understand what is happening and make their own decisions about the process.

Do they have testamentary capacity?

One of the key requirements of a valid Will is that the person making it has what is legally known as ‘Testamentary Capacity’.

This means that they have to have the ability to understand a number of things;

Can they understand what making a Will means?

Do they realise what the effects of their decisions will be?

Have they any disorder of the mind that distorts their sense of right?

Do they know what they own and how it might change in the future?

Have they an appreciation of who might expect to be named in their Will and the effect of including or excluding them?

In general, the tendency is to give the benefit of doubt to the person making the Will, as one judge said “it would be a very strong thing” to assume that the testator did not have the capacity.


If you would like to speak to a probate expert, call us free on 08001181603

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.


What happens if there is a challenge?

If a Will is challenged on the basis of mental capacity then there is likely to be a costly court battle ahead.

In general, the burden of proof is on the person contesting the Will and it is without a doubt a difficult (and expensive)  thing to prove that someone did not have enough of their faculties at the time of making the testament to ensure that it was valid.

The case law surrounding this shows that there is a reluctance to overturn a document and as Lord Justice Mummery put it in  Hawes v Burgess in 2013 a Will “should only be set aside on the clearest evidence of lack of mental capacity”.

This means that the likelihood of a successful challenge is greatly reduced.

Things to think of when making a Will

Dementia is a progressive disease and so it is important to make sure that a Will is made as early as possible as later progression may mean that testamentary capacity isn’t present.

It is a good idea to ask your executors to make notes at the time of making the Will that specifically give their view as to the mental state of the testator. This can be used later to show that the ‘soundness of mind’ of the person making the Will was thought about at the time.

Medical evidence is also extremely useful and being able to ask a doctor to write a note explaining that they feel that the capacity is present to make and understand the implications of making a Will can be very helpful later on.

People with dementia can make a Will

There is no reason at all that people with dementia cannot make a Will provided that they have testamentary capacity.

Having a medical opinion and notes made at the time from independent people will certainly help in the case of a challenge.

It is also a sensible move to think about making other provisions such as an advance decision and setting up a power of attorney for when the condition gets more advanced.


If you would like to speak to a probate expert, call us free on 08001181603

Need to write a Will? Write your’s on the Smart Will App in 10 minutes for just £19 or £29 for couples.


 

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