What is dementia?
Dementia is a group of symptoms (ie a syndrome) associated with the ongoing decline of brain functioning. Common dementia symptoms include:
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memory loss
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problems with thinking speed
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problems making and carrying out plans
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problems understanding things
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language problems (eg problems speaking or using incorrect words) and consequent communication and social stress
Not only does dementia affect brain function, but it can also change how a person behaves and feels.
All of the symptoms of dementia may come and go for a given individual - their experience of the syndrome may be different day-to-day, hour-to-hour. This means that somebody with dementia could, for example, be significantly confused one minute and completely lucid the next.
For more information, see the NHS’ website on dementia.
Making a will when you have dementia
A will (or a codicil) is not automatically rendered invalid if someone has dementia or suffers from any other mental illness while creating it. However, in England, Wales and Scotland, it is possible to challenge a will if it was not made by someone of sound mind.
A will can only be created by someone who understands the following:
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the fact that they are making a will and its consequences
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the claims of those who might expect to be left something in the will
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the extent of their property and assets
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they must not at that time suffer any delusion of the mind that influences how they may deal with disposing of their property (ie that could cause them to leave gifts in their will that they would not have made had they been of sound mind)
The same applies to changes made to wills (eg using a Codicil).
A person with dementia can meet all of these criteria. It is not the case that whether or not they qualify depends on their overall health, which includes dementia; rather, it’s their cognitive awareness at a specific moment in time.
Is it possible to challenge a will made by someone with dementia?
Someone who wants to challenge a will would need to provide medical evidence that the person creating it did not have capacity (ie they did not have the ability to make a decision for themselves due to an impairment of the brain).
If a will is declared invalid, it will be replaced with the most recent (valid) written will. If no previous will can be found, intestacy rules (which differ in Scotland) apply. The intestacy rules in England and Wales are defined by the Inheritance and Trustees’ Power Act 2014, while in Scotland, they are defined by the Succession (Scotland) Act 1964. They look at family connections to determine who gets what. Family relationships are not taken into account when determining inheritance.
When putting a will together, a good solicitor or will writer will check to see if medical evidence regarding the will maker’s (ie the testator’s) mental competence should be obtained before the will is finalised. The practitioner should also explain how they determined the testator’s cognitive ability (ie capacity), to ensure that the will is more resistant and vulnerable to being challenged.
If a will is challenged in court, all of the evidence (medical and otherwise) will be thoroughly examined. As a result, it’s critical to work with an experienced will writer and legal expert throughout this time.
What if a family member with dementia wants to make a will?
If you want to make a will for yourself or a family member, if you feel that someone’s capacity was restricted when their will was made, or if you’re an executor of a will that’s being challenged, it’s important to speak with a solicitor who can guide you through the process. Consider using Rocket Lawyer’s Last will and testament for England and Wales or Scotland as a starting point. If you require a bespoke will, consider using our Will drafting service.
If you have any more questions surrounding the contesting of a will, you can contact the contesting a will team at Myerson Solicitors, who can support you through complex cases.
