Research from the NHS has shown that more than 850,000 people in the UK have dementia, and this number is predicted to increase with people living longer. With this in mind, many people who have dementia will likely be seeking to handle their legal affairs surrounding the making of a valid Will.
Can someone with dementia make a Will?
If the person is not of sound mind while making their Will, it may be possible to challenge it. When they make their Will, the fact that the individual has dementia (or indeed any other mental health illness) does not render a Will invalid.
For an individual 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 the property and assets they have.
- The claims of those who might expect to be left something within their Will.
- They must not suffer any delusion of the mind that can influence how they might deal with the disposing of their property, i.e. leaving legacies in their Will which they would not have made had they been of sound mind.
An individual with dementia can meet the above criteria. It is not the person’s general state of health, including dementia that is at issue. Rather, it is the person’s cognitive understanding at a particular point in time, when they are providing instructions to their solicitor.
Can I challenge a Will made by someone with dementia?
If someone were to challenge the Will, they would need to prove that the person with dementia making the Will did not have the capacity to do so. This can be done by providing the necessary medical evidence.
If a Will is invalid, any prior Will written beforehand will be deemed as the valid Will. If there was no prior Will, then the Intestacy Rules would apply. The Intestacy Rules are set out in the Inheritance and Trustees’ Power Act. They determine who inherits what based on family connections. The rules do not take into account the closeness of your relationships or who is most in need. This can lead to undesirable consequences with very distant and estranged family members deriving benefit instead of those closest to the person who has died, such as cohabitees, stepchildren, and close friends. It could also result in an estranged spouse being the substantial beneficiary.
Find a solicitor with experience.
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 make sure to record how they have assessed the Will maker’s capacity.
If these practical steps are taken, it will make the Will more robust and less likely to be challenged.
If a Will is to be challenged in court, all the evidence, medical and otherwise, will be analysed 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 wants to make a Will, or if you consider that a relative lacked capacity when their Will was written, or you are an executor of a Will that is being challenged, it is important to speak to a specialist solicitor, as there could be complex issues surrounding the Will. Feel free to contact the Myerson Solicitors Will Disputes Team if you have any further questions.