Research from the NHS has shown there are more than 850,000 people in the UK who have dementia, and this number is set to increase with people living longer. With this in mind, it is likely that many people who have dementia will be seeking to handle their legal affairs surrounding the making of their will.
Can a person with dementia make a valid will?
Generally, if an individual is not of sound mind when they are making their will, it may be possible to challenge it. The fact that someone suffers from dementia (or indeed any other mental health illness) when they make their will, does not itself, render a will invalid.
In order for a person to have the necessary capacity to make a will they must understand:
- The fact that they are making a will and its consequences.
- The extent of their property and assets.
- The claims of those who might expect to be left something in the will.
- They must not suffer any delusion of the mind which influences how they may deal with disposing of their property i.e. leaving legacies in their will which they would not have made, had they been of sound mind.
It is possible for a person with dementia to satisfy these criteria. It is not the individual’s general state of health, including dementia at issue; rather, it is the person’s cognitive understanding at a particular point in time, that is, when they are providing instructions to their solicitor.
Can I challenge a will made by a person with dementia?
If someone was to try to challenge the will, it would be necessary for them to prove, with medical evidence, that the person with dementia making the will did not have capacity.
If a will is found to be invalid, then any prior will that had been written, will be deemed as the valid will. If there is no prior will, the Intestacy Rules apply. The intestacy rules are set out in the Inheritance and Trustees’ Power Act and determine who inherits what based on family connections. The rules don’t take into account the closeness of your relationships or who is most in need.
A good solicitor or will writer will assess when taking will instructions, if medical opinion on the will maker’s capacity ought to be obtained before the will is executed.
The practitioner should also record how they themselves have assessed the will maker’s capacity.
If these practical steps are taken, it will make the will more robust and less susceptible to challenge.
Should a will be challenged in Court, all the evidence, medical and otherwise, will be looked at very closely.
What if a family member with dementia wants to make a will?
If you have a relative with dementia (or other mental illness) who would like to make a will, or if you consider that a relative lacked capacity when their will was written, or you’re an executor of a will that is being challenged, it’s really important to speak to a specialist solicitor, as there could be complex issues surrounding the WIll
If you have any questions surrounding the contesting of a will, you can contact the Will Disputes team at Myerson Solicitors.
Jennifer McGuinness is a Senior Associate with the Will Disputes team at Myerson.
Photo via Pxfuel.