A dementia diagnosis does not automatically mean that someone cannot make a will. This is an important point for families to understand. Many people assume that once a loved one has been diagnosed with dementia, they can no longer make or update their will. In law, that is not always correct. A person with dementia may still have the mental capacity required to make a valid will, depending on their condition, the stage of their illness and their understanding at the time the will is made. However, wills made by someone with dementia can be more vulnerable to challenge after death. Concerns may arise if the will was changed unexpectedly, if one person benefits more than others, or if family members believe the person making the will did not fully understand what they were doing. This is why careful advice, proper records and appropriate safeguards are so important.
To make a valid will, a person must have testamentary capacity. This means they must have the mental ability to understand what making a will involves.
The leading legal test for testamentary capacity comes from the case of Banks v Goodfellow. This test remains central when considering whether someone had capacity to make a will.
In broad terms, the person making the will must understand that they are making a will and that it will dispose of their property after death. They must also have a general understanding of the assets they own. They do not need to know every account balance or exact value, but they should understand the nature and extent of their estate.
They must also be able to consider the people who might reasonably expect to benefit from their estate, such as a spouse, civil partner, children, dependants or close family members. This does not mean they have to leave something to everyone, but they should be able to understand who those people are and make a decision about whether or not to include them.
Finally, the person must not be affected by a disorder of the mind, delusion or cognitive impairment that influences the terms of the will. In other words, their judgement must not be distorted in a way that affects how they choose to distribute their estate.
Yes. A person may have dementia and still satisfy the legal requirements for making a will.
The key question is not whether they have a diagnosis. The key question is whether they had testamentary capacity at the time they gave instructions and executed the will.
Dementia can affect people in different ways. Some people may have good and bad days. Others may understand simple decisions but struggle with more complex arrangements. A person may have memory difficulties but still understand the nature of making a will, the general extent of their estate and the people who may expect to benefit.
This means capacity must be assessed carefully and specifically. It should not be assumed either way. For families, this can be difficult. One person may believe their loved one was fully capable of making decisions, while another may feel that they were confused or vulnerable. If the will is later challenged, the court will look closely at the evidence from the time the will was made.
The case of Lloyd v Jones and others is a useful example.
In that case, Mrs Harris made her will while suffering from Alzheimer's type dementia and other cognitive difficulties. Her will left the majority of her estate to her son and daughter-in-law, with a smaller gift to her daughter.
After Mrs Harris died, her daughter challenged the validity of the will. The court had to decide whether Mrs Harris had testamentary capacity and whether the will reflected her true intentions. The court found that the will was valid.
Despite the dementia diagnosis, Mrs Harris had the necessary capacity, satisfied the Banks v Goodfellow test and her wishes reflected a long-standing intention to leave the majority of her estate to her son.
This case highlights an important principle. A dementia diagnosis is relevant, but it is not conclusive. The court will consider the person’s actual understanding at the time the will was made, along with the wider evidence.
Wills made after a dementia diagnosis can be more likely to attract scrutiny, particularly where the terms differ from previous wills or family expectations.
A challenge may be brought on the basis that the person lacked testamentary capacity. There may also be allegations that they did not know and approve the contents of the will, or that they were influenced by someone else.
Concerns may arise where a beneficiary arranged the will appointment, gave instructions on the person’s behalf, was present during meetings, or appears to have played a major role in the process. There may also be concern where the will excludes a close family member without explanation.
A will challenge does not automatically mean the will is invalid. The person challenging it must have a proper legal basis and supporting evidence. However, where dementia is involved, the evidence around capacity and intention becomes especially important.
If someone with dementia wants to make or update a will, steps should be taken to reduce the risk of future disputes.
The person should instruct an experienced solicitor or will writer who understands testamentary capacity and the risks involved. They should be seen alone wherever possible, so the professional can be satisfied that the instructions are coming from the person making the will and not from someone else.
A medical assessment or GP letter close to the date of execution can also be helpful. This is particularly important where there has been a dementia diagnosis, memory loss, serious illness or any concern that capacity may later be questioned.
The 'Golden Rule' is often relevant in these circumstances. This best practice guidance encourages will writers to involve a medical practitioner where a testator is elderly or seriously ill, so that capacity is considered and properly recorded.
It may also be useful to keep a detailed attendance note explaining the person’s instructions, their understanding, their reasons for making certain decisions and any reasons for excluding family members. In some cases, video evidence may also be considered, although this should be handled carefully and with legal advice.
The will should then be executed promptly and correctly. Delays can create further risk, particularly where the person’s capacity may fluctuate or deteriorate.
If a will is challenged after death, the evidence will usually focus on the person’s capacity and understanding at the time the will was made.
Relevant evidence may include the will file, solicitor or will writer notes, medical records, care records, previous wills, correspondence, witness evidence and any medical opinion obtained at the time.
The court may also consider whether the terms of the will were consistent with previous intentions. A major change is not automatically suspicious, but it may need explanation, especially if it benefits someone who was involved in arranging the will.
Good records can make a significant difference. They can help show that the person understood what they were doing, gave their own instructions and made decisions for reasons that were considered at the time.
A person with dementia can make a valid will if they have testamentary capacity at the relevant time. The diagnosis itself does not decide the issue.
The real question is whether the person understood that they were making a will, understood the general extent of their estate, appreciated who might expect to benefit and was not affected by a disorder or delusion that influenced their decisions.
Because wills made after a dementia diagnosis are more likely to be questioned, careful steps should be taken to protect the person’s wishes.
Legal advice, medical evidence, clear attendance notes and proper execution can all help reduce the risk of a future challenge.
Premier Solicitors' specialist Contentious Probate team advises on disputes involving dementia, testamentary capacity and challenged wills.
We can help if you are concerned that a loved one did not have capacity when making a will, or if you are defending a will that has been challenged after death. Our team can review the evidence, advise on the strength of a potential claim and guide you through the options available.
We also advise families, executors and beneficiaries on disputes involving undue influence, lack of knowledge and approval, executor disputes and claims under the Inheritance (Provision for Family and Dependants) Act 1975.
If you have concerns about a will or the administration of an estate, contact Premier Solicitors' Contentious Probate team today.
Read more blog posts which Nickeisha has written for this website.
