Dementia is an umbrella term for the impaired ability to remember, think or make decisions that interfere with doing every day activities. The most common type of dementia is Alzheimers Disease.
Contrary to common opinion, receiving a dementia diagnosis does not automatically stop a person from making a valid Will. It depends on whether a person is able to understand and make decisions specifically about the making of a Will. The person making the will must have ‘testamentary capacity’ at the time of making the Will. The test for ‘testamentary capacity’ is laid down in case law. Capacity can be fluctuating, for example a person may be better on a morning than an afternoon.
If there are concerns that the person making the Will did not have capacity when they made the Will, a challenge may be made as to its legality.
As well as capacity, there are specific requirements for a Will to be valid.
In conclusion, a dementia diagnosis is not an automatic bar to making a Will. However it does highlight how it can make the Will making process more complex and where capacity is an issue, how essential it is to obtain appropriate professional legal advice so thorough investigations can be made.
If you or someone you know is affected by dementia and would like to make a Will, please get in touch with our Probate Department so the requirements can be discussed.
