We are often asked whether some who is in the early stages of dementia or of mental decline of some other kind, is able to make a Will.
In order to make a valid Will, a person must satisfy a legal test of capacity:-
- does the person making the Will understand what they are doing and also its effect?
- do they understand the approximate extent of their assets and therefore what they can give away under their Will?
- do they have an awareness of who may have claims on their assets?
- and these understandings must not be impaired by any disorder of the mind or delusions.
The effect of this is that confusion of the mind, or a condition such as dementia which affects the ability of a person’s mind to satisfy the test referred to above, can mean that someone is unable in legal terms to make a Will. The only way around this is to apply through the Court of Protection for a statutory Will to be made on their behalf, which is a costly and lengthy procedure, requiring careful handling.
With this in mind, it is important that they should make a Will before it is too late. In a situation of this nature where someone is in the early stages of dementia, we would generally recommend that the Will is witnessed by a specialist psychiatrist or the like, who would also produce a report on the person’s capacity, so as to help to prevent any challenge to the Will in the future on grounds of mental incapacity.
If a person makes a Will when they are entirely lucid but they then later lose their mental faculties, the Will is not invalidated and, in some circumstances, where a person has the necessary mental ability to give instructions for the Will but they then lose that ability before they sign it, the law will uphold the Will.
This all underlines the importance that everyone should make a Will while they are fully able to do so, rather than leaving it too late. If a person’s situation is borderline, it is very important that a specialist Will-maker is involved, who understands the issues and how to deal with them correctly. We are accredited members of the Law Society’s Wills and Inheritance Quality Scheme and have an experienced and professional Team of Solicitors who specialise in this area – for further advice please contact us on (01267) 237441 – Option 2.