Wills and dementia – what are the challenges faced by clients and their solicitors?

Published on 01.06.23
Published on 01.06.23

For a Will to be valid, the person making it must have the mental capacity to give instructions and understand those instructions. If an individual is living with dementia, it may be wrongly assumed they automatically lack the mental capacity to make a Will that reflects their wishes. In this article, Head of Wills and Probate Elena Stylianou examines the importance of establishing someone’s mental capacity when making a Will, especially if they have some form of dementia.

Dementia is a disease caused by abnormal brain changes that can affect an individual’s cognitive abilities. In the UK, it is believed one in 14 people over the age of 65 and one in six people over the age of 80 are living with the disease. There are many types of dementia, but the most common one affecting between 60% to 80% of those diagnosed is Alzheimer’s Disease. The symptoms of Alzheimer’s Disease include memory loss, which can affect someone’s ability to give vital Will-making instructions.

It is a misconception that because an individual has been diagnosed with dementia, they no longer have the mental capacity to make a Will. But there are several stages of dementia; if diagnosed early enough, an individual can still have the necessary mental capacity.

The test for mental capacity

It can be extremely difficult for a solicitor to determine whether someone instructing them to make a Will understands the instructions they are giving. Solicitors must also ensure that when their client executes their Will, they are doing so with a full understanding of those instructions. This is especially important for those clients who are later on in their dementia diagnosis.

Several court decisions have been made in favour of claimants who have challenged Wills made by individuals with dementia. A solicitor will therefore want to be completely satisfied when speaking to their clients that they pass the legal test for capacity for making a valid Will. This legal test assesses whether an individual has the mental capacity to understand:

  • the nature and impact of making a Will,
  • the extent of what they own, and
  • who could make a claim if they are not named in the Will (for example, a dependent child).

They must also not have a disorder of the mind that poisons their affections, perverts their sense of right or prevents them from exercising their natural faculties when deciding how to dispose of their property under their Will.

We encourage our clients to make a Will as early as possible, but most individuals do not even like to start thinking about it until later in their life. Since dementia usually affects older people, it can sometimes cause issues if left too late.

If you know anyone who you think may be in the early stages of dementia or has already been diagnosed with it but still has mental capacity, please encourage them to think about making a Will if they have not already done so.

If you would like to discuss making a Will, please contact Elena Stylianou at [email protected].

Disclaimer: The above is merely general guidance and should not be relied on as formal advice. We suggest you take professional legal advice before taking any action in relation to the issues discussed above.