A diagnosis of dementia doesn’t automatically mean that a person lacks the ability to make a valid will.
A person may have dementia and still have the necessary capacity required at a specific time to make their will. It’s also possible for a person’s capacity to fluctuate over time, meaning they may have capacity to make a will at one point in time but not at another.
Where there are concerns about a person’s capacity, it’s important that these are addressed carefully. If a person lacks the necessary capacity to make a will (known as “testamentary capacity”), the validity of that will could be challenged at a later date.
However, just because a person lacks testamentary capacity, it doesn’t mean they can’t make a valid will. In that case an application can instead be made to the Court of Protection for a “statutory will” to be authorised on their behalf.
What is testamentary capacity?
Testamentary capacity refers to the level of capacity needed to make a valid will.
The legal test comes from the case of Banks v Goodfellow (1870) which broadly states that a person making a will should be able to understand:
- the nature of making a will and its effects;
- the extent of their assets and property; and
- which individuals they are expected to consider when deciding who should benefit from their estate.
They should be able to make those decisions without a ‘disorder of the mind’ or delusion influencing their decision about their will.
The key question is whether the person can understand the relevant information to make their will.
Therefore, a diagnosis of dementia alone doesn’t simply determine whether someone has testamentary capacity. The question is how the condition affects their ability to understand what making a will means, weigh the necessary information and make decisions about how their estate should be passed on after death.
How is capacity assessed where someone has dementia?
Where there is reason to doubt a person’s testamentary capacity, obtaining appropriate evidence of capacity at the time the will is made can help to prevent challenges later on.
When preparing a will, a will writer should consider a person’s testamentary capacity and keep a record of the circumstances in which instructions were provided and the will was signed. However, where there are concerns about capacity (such as in cases where a dementia diagnosis is present), it may be appropriate to obtain an assessment from a suitably qualified medical professional.
A testamentary capacity assessment can provide valuable evidence that a person has the necessary capacity to make their will. Although an assessment does not, on its own, determine whether a will is valid, it can help support the validity of the will if questions are later raised after the person’s death.
What happens if someone lacks capacity to make a will?
If a person lacks testamentary capacity, they can’t simply make a valid will in the usual way, nor can any appointed attorney or deputy make a will for them without Court authorisation.
This doesn’t necessarily mean that any action needs to be taken. For example, the person may already have a will (signed at a time when they had testamentary capacity) that continues to reflect their wishes and circumstances. The fact that they have since lost testamentary capacity doesn’t, on its own, affect the validity of that will.
If the person doesn‘t have a will, their estate will pass according to what are known as the intestacy rules. These are set rules which determine who inherits when someone dies without a valid will. The outcome under those rules may be appropriate for the person’s circumstances, in which case a new will may not be necessary.
However, there may be circumstances where a new will is required. In such cases, an application should be made to the Court of Protection for authority to execute a statutory will on the person’s behalf.
What is a statutory will?
A statutory will is a will authorised by the Court of Protection for a person who lacks testamentary capacity.
The Court has the power to authorise a statutory will under the Mental Capacity Act 2005 (hence it is “statutory”). In doing so, it will consider what’s in the person’s best interests and will review a range of factors, including, but not limited to:
- the person’s past and present wishes and feelings;
- their beliefs and values;
- their relationships with others; and
- the views of those involved in their care or interested in their welfare.
When is a statutory will needed?
A statutory will may be required where:
- a person has never made a will and the intestacy rules would not produce an appropriate outcome;
- an existing will was made many years ago and there have since been significant changes in the person’s personal or financial circumstances;
- the person’s relationship with potential beneficiaries has changed significantly;
- the person’s estate has changed substantially, either materially or in value; or
- there are legitimate tax or estate-planning considerations that need to be addressed.
A statutory will application can involve difficult questions about family relationships, the person’s wishes and the competing interests of potential beneficiaries. The Court of Protection’s focus when considering a statutory will application is the best interests of the person who lacks capacity.
What if you believe someone lacked capacity when they made their will?
A statutory will can only be made for someone who is still alive and does not have testamentary capacity to make a will themselves.
If you suspect that someone lacked testamentary capacity at the time that they made their will, and they have now passed away, it may be possible to contest that will.
You would need evidence to bring a claim, particularly evidence of the person’s testamentary capacity at the time they made the will.
Medical records, a solicitor’s will file and their evidence, contemporaneous records and evidence from people who knew the person at the relevant time can all be important when determining whether they had testamentary capacity.
Conclusion
When someone is diagnosed with dementia, or any other condition which may affect their cognitive functioning, questions can arise concerning their will and estate planning.
While a diagnosis of dementia doesn’t prevent someone from making a valid will, precautions should be taken where there are concerns about their capacity. Early legal advice can help manage the risk of disputes further down the line. Equally, evidence of the person’s capacity and their wishes at the relevant time is often key to any potential challenge.
If a person no longer has testamentary capacity, it may be possible to apply for a statutory will on their behalf. A solicitor can advise whether this type of application is sensible in the circumstances.
Equally, where someone has died and there are concerns that they lacked testamentary capacity, specialist advice can help establish whether there may be grounds to challenge the will.
Note: At the time of publication, the test for testamentary capacity is laid out in Banks and Goodfellow. However, the UK Law Commission has recommended adopting the legal test set out in the Mental Capacity Act 2005 and draft bill – the Wills Bill – has been published with a view to being enacted by Parliament in the near future.
