Does dementia stop you signing a Will?
“Does dementia stop me from making a Will?” It’s a question we often get asked, along with dozens of similar queries on behalf of parents, grandparents and other relatives.
“It all comes down to whether the person with dementia has ‘capacity’ – this is a deceptively complex question though, as the answer isn’t always a simple ‘yes’ or ‘no’.
This is because dementia can affect our capacity to make different decisions in different ways. For example, a person with dementia might have the capacity to withdraw money from a bank account, whilst lacking the ability to make a more complex financial decision about buying or selling property.
This means that if you have dementia, your mental capacity to sign a Will may be called into question after you die. This can lead to disputes over your estate and long-running legal disputes between beneficiaries, executors and anyone left out of the Will (particularly family members).
These kind of disputes can be stopped or at least shortened, but only if there’s clear proof that you were able to properly understand your Will and sign it.
So, as solicitors, when we help our clients with dementia to draft their Will, the ‘golden rule’ is to get medical evidence of their mental capacity when they come to sign it.
Depending on the client’s funds and diagnosis, a simple letter from their GP could be all the evidence that’s needed – especially in the early stages of their disease.
However, if the GP’s report casts any doubt over our client’s mental capacity, we might advise clients to request a more detailed medical report from a dementia expert.
Depending on the results of this report, they may still be capable of making a valid Will – it’s important to remember that, even if a person has relatively advanced dementia, it’s possible for them to be lucid enough to read and understand documents at times.
If this is the case, the best way forward is often to have a medical expert present when the person signs their Will, who can testify that they were medically fit to do so. They may also be able to understand information they’re given better if it’s explained verbally or with visual aids and without as much legal jargon.
If even this isn’t possible, then the last valid Will that the person with dementia made will be ‘locked in’ and the options to get it changed will be limited. If they haven’t made a Will, then the rules on intestacy will apply instead.
In some circumstances, it is possible for an attorney or deputy to apply to the Court of Protection on a person with dementia’s behalf to get their Will changed, but the judge would need strong grounds to consider the request. In any event, applications to the Court of Protection can be expensive and, in cases such as these, the prospects of success could well be limited.
In short, if you or a loved one has been diagnosed with dementia and want to make a Will, my advice is this: do it sooner rather than later, and make sure your solicitor has taken the necessary steps to further demonstrate that the Will is valid.”