Dementia affects 850,000 people in the UK, according to research from the NHS (National Health Service England). With more people living longer, this number is expected to rise. In light of this fact, many persons with dementia will want to handle their legal issues surrounding the creation of their Will. Can someone with dementia make a Will?
Making a valid Will with dementia
If a person is not of sound mind when making their Will, then it can be possible to challenge it. When making their Will, the fact that someone has dementia or perhaps any other mental health illness, does not itself render a Will invalid.
For an individual to have the necessary capacity to create a Will, they must understand:
- The fact that they are creating a Will and its consequences.
- The claims of those who might expect to be left something in the Will.
- The amount of their property and assets.
- They must not suffer any delusion of the mind which impacts how they may deal with disposing of their property, i.e. leaving legacies in their Will which they would not have included had they been of sound mind.
A person that has dementia can satisfy these criteria. It is not the general state of health of the individual, including dementia at issue; rather, it is the individual’s cognitive understanding at a particular point in time that is when they are giving instructions to their solicitor.
Can I contest a Will made by a person with dementia?
It would be necessary for someone seeking to challenge a Will, to produce medical proof that the person making it, did not have capacity.
If a Will is deemed invalid, any previously written Will would become the new valid Will. If no previous Will exists, the Intestacy Rules apply. The Inheritance and Trustees’ Power Act establishes intestacy regulations. They determine who gets what based on family connections. The rules do not consider closeness of family ties or who is most in need.
When creating a Will, a good solicitor or Will writer will assess, when taking instructions from their client, if medical opinion on the Will maker’s capacity ought to be acquired before the Will is executed.
The practitioner should also record how they themselves have assessed the Will maker’s capacity, to help ensure the Will is more robust and less susceptible to challenge.
If a Will is challenged in court, all of the evidence, medical and otherwise, will be closely examined, so it is important to use an experienced Will writer and professional to support you through this process.
What if a member of the family with dementia wants to make a Will?
If you have a family member with dementia or another mental illness, wanting to create a Will, or if you believe that the capacity of a relative was limited when their Will was written, or if you’re an executor of a Will being challenged, it’s important to hire specialist solicitor with experience to support you and your family through the complex process.
If you have any more questions surrounding contesting of a Will, or Will writing, Myerson have both Will dispute and Will solicitors working together to support you through complex cases. You can contact the contesting a Will team at Myerson Solicitors (based in the UK).
‘Can someone with dementia make a Will?’ article written by Myerson Solicitors.