Can someone with dementia make a Will?
Why are more Wills being challenged?
As our population grows older, we're seeing more Wills challenged. Many of these legal challenges are caused by concerns about whether the person making the will fully understood what they were doing.
Dementia, which is often linked with getting older, is becoming more common. By 2025, over a million people are expected to be diagnosed with it. Anyone familiar with dementia knows how hard it can be on the person diagnosed and their loved ones.
What is testamentary capacity?
But here's the thing: just because someone has dementia doesn't mean they can't make a Will saying who inherits when they pass away. It all comes down to whether they're capable of understanding and deciding about the Will.
Our principal, Donna Hames, has been assessing "testamentary capacity" for almost two decades. Testamentary capacity means being able to understand enough to make a proper Will. If someone thinks the person who made the Will didn't have the capacity to do it, they might challenge it.
To win a challenge, you have to prove the person making the Will didn't have the capacity for it. This is very specific.
People usually make these claims when the person making the Will had a medical condition like dementia, depression, or anxiety. These conditions can affect how well someone can make decisions about a will.
Can capacity fluctuate?
One tricky thing is that dementia can cause good and bad days. Many factors, like medications, can affect how well someone's brain works on any given day. This makes it more challenging to decide if someone was capable of making a Will when they did.
Let's take an example:
Sean’s mother has recently passed away. A few weeks after her funeral, he finds a new Will that cuts out his brother, John, from getting anything. John's upset about it, not just because he's left out, but because the Will was made only a few weeks before their mum died. He thinks it can’t be valid because his mum had an early onset dementia diagnosis and some short-term memory loss.
When Sean talks to a solicitor, he explains that John and their mum haven't spoken in almost twenty years. Despite trying to patch things up, their mum decided to change her Will and leave everything to Thomas. She was well aware she had been diagnosed with dementia and that she was getting progressively less able to make complex decisions.
Sean says his mum was clear about what she wanted. She went to see a Will writer who helped her write the new Will when she was still mentally sharp. Sean waited outside, and the Will writer asked his mum’s GP for their views. His mum’s medical records backed up everything Sean said about his mum’s state of mind.
What happens if there’s a challenge to a Will because of dementia?
Figuring out if someone had the capacity to make a Will involves looking into their medical records, reviewing the notes from their Will writer, and talking to people who were around them before they died. The focus is on whether they understood what they were doing and how it would affect their loved ones.
Someone has testamentary capacity if they:
Know they're making a will and what it means
Understand what they own
Know who they'd usually give stuff to, and
Aren't influenced by any mental issues or strange beliefs.
Our example shows how complicated these matters can be.
Someone with dementia may still have the ability to make decisions, but this can change from day to day. It’s crucial to keep updating a Will if family situations change.
Waiting for a diagnosis is leaving things to chance. If you suspect someone you love is struggling with short-term memory loss, encourage them to review their Will as soon as possible.
Making a Will after a diagnosis of dementia can be challenging. If you need help, please get in touch today. Our advice is free, and there’s no fee to chat for 15 minutes. We’re here to assist you.