Can someone with dementia make a valid will?


If you or a loved one are diagnosed with dementia it is possible to make a will while you still have periods of lucidity, say legal experts.

It is also advisable to set up lasting power of attorney, a legal failsafe which allows someone you trust to take over control of your affairs, while you are still medically assessed as able to make decisions for yourself.

But you should take care in how you handle the process, because widely-held misconceptions about dementia can lead to family disputes and claims against a will, warns solicitor Katie de Swarte of Osbornes Law.

Inheritance planning: If you or a loved one are diagnosed with dementia it is still possible to make a will

Her firm has seen a 40 per cent rise in enquiries since the end of 2021 from people who believe a loved one’s will is invalid because it was made or amended after a dementia diagnosis.

De Swarte says those living with the condition – 900,000 and rising in the UK – might want to write or change their will but think they can’t as it would not count.

Many people do not make a will, with a new survey from finance firm Killik and Co showing that more than half of adults have not set down their last wishes. Even a third of over-55s don’t have a will, it found.

But it is still possible to create one after a dementia diagnosis as long as you still have ‘testamentary capacity’, the legal term used to describe the ability to make or alter a valid will, says De Swarte.

‘Dementia is a progressive disease and sufferers in the early stages will still experience periods of lucidity,’ she explains.

But she warns: ”If the correct precautions are not taken it can make allegations easier to make and can be much harder to prove that a person had capacity retrospectively, at the time their will was executed. Often in these types of situations allegations of undue influence are made too.

What happens if you don’t have an LPA, or you die without a will?

If you fall too ill to make an LPA, your loved ones an apply for a deputyship but it can be a long, complicated and costly process.

If you die intestate, spouses have priority in the line of inheritance, followed by children and then other family members. A lawyer gives the full order of who inherits here.

‘I have seen a lot of cases where an ageing parent ends up living with one sibling and alters their will to reflect that child’s role as the primary caregiver, only for other siblings to find out after death and challenge whether the parent knew what they were doing or were coerced.’

Hannah Herbert, technical counsel at the STEP trade body for inheritance professionals, says: ‘It is possible for someone with dementia to make a will.

‘The level of understanding required to prove they have the requisite capacity will vary from case to case, for example depending on the complexity of the estate.’

What to do about a will if you or a loved one has dementia?

1. Put a plan in place soon

If someone in the early stages of dementia or any cognitive disease has no will or lasting power of attorney, it is best to tackle this sooner rather than later.

‘It’s a difficult thing to have to think about on top of dealing with such a devastating diagnosis,’ says Swarte.

‘It is important to keep in mind that if you want your wishes to be carried out, the more serious your condition gets, the harder it will be, and it may reach a stage where it becomes impossible.’

2. Carry out a capacity assessment

Capacity is a legal term which means ability to make your own decisions.

De Swarte says if someone has been diagnosed with dementia or any other cognitive impairment, an independent capacity assessment should be carried out at the time of the will being signed, or earlier in the process if necessary.

‘This is known as the “Golden Rule” and is a protective measure which can prove vital in avoiding disputes further down the line,’ she says.

Holly Chantler, a director of Solicitors For The Elderly and partner at law firm Morr & Co, advises using a specialist capacity assessor, because GPs are generally not appropriate people to carry out this task.

She also suggests keeping a paper trail of the process followed.

‘Where a person is making significant changes to their testamentary arrangements, either from an existing will or significantly different from the intestacy provisions, it may require greater explanation and increased concern as to the circumstances regarding the making of the will,’ she says.

Hannah Herbert of STEP says: ‘Suffering some loss of cognitive ability or decline in mental functions will not necessarily prevent a testator from having testamentary capacity because their capacity to make decisions can fluctuate.

‘Where there is a diagnosis of dementia, a will drafter should obtain a medical opinion as to testamentary capacity as close as possible to the date on which instructions are taken and the will signed, in order to ensure the will is valid.’

3. Don’t assume a person with dementia lacks capacity

People should be presumed to have capacity unless it is established that they do not, says Chantler.

‘A person should be supported to make their own decisions and this may require a person to be given additional time and support, perhaps using technology. Simple language may be required.’

She suggests people read this report from Birmingham University on the topic of capacity in everyday life, and adds: ‘Capacity is time and matter specific so a person may lack capacity at some times but not others.

‘You should consider if there is a time of day or place (seeing someone in a familiar environment) that improves the possibility of a person having capacity.’

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Chantler explains that in order to be taken into account, cognitive impairment must directly impact on the decision to be made.

‘In the context of wills, for example, a person may hold delusional beliefs but they may not be relevant to the will and as such, they may have capacity to make a will.

‘The Mental Capacity Act 2005 is very clear that a lack of capacity cannot be established merely by reference to a person’s age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.’

Chantler adds: ‘A person can be unduly influenced even if they have mental capacity.’

4. Set up lasting power of attorney

You can protect your finances in case you become too ill to handle them by appointing someone you trust – usually a family member or friend – to take over by setting up Lasting Power of Attorney.

It is possible for an LPA to be put in place after a dementia diagnosis, during lucid periods, says De Swarte.

But she notes that the level of capacity a person needs to make an LPA is governed by different legislation, and so has different requirements from making a will.

‘Again, if there are any cognitive issues, it is advisable for the person to undergo a capacity assessment at the time of making the LPA. A medical expert can act as certificate provider in this instance.’

Hannah Herbert of STEP says: ‘Whilst the legal test for capacity to make a will differs from that required to make an LPA, it’s essential that a person making an LPA understands what they are doing and who they are empowering to make decisions on their behalf.

‘If the medical opinion is that the person does not have capacity and cannot make an LPA, you can apply to the Court of Protection for a Deputyship Order that will enable you to make decisions on their behalf.

‘This can be more expensive and might take some time to arrange. That’s why the best advice STEP can give everyone is to put in place a will and Lasting Power of Attorney when they’re fit and well to avoid difficulties in the future’

The charity Dementia UK has advice on setting up an LPA here.

5. Use a lawyer to avoid disputes

Using a legal expert will ensure the will or lasting power of attorney properly reflect the person’s needs and wishes and are workable, explains Holly Chantler of SFE.

It will also mitigate the risk of a claim or objection being raised, she says.

‘It can cause emotional distress to a person and their family if they also have to deal with a family breakdown whilst at the same time dealing with the person’s deterioration.’

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