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Can someone with Dementia make a valid will?

May 21st 2021

The simple answer: Potentially.

Rebecca Armstrong explains below …

It is often assumed that an individual with Dementia can’t make a valid will and it is therefore one of the most common grounds for challenging the validity of a will. That is not right though. The mere existence of such a diagnosis does not mean that the person lacked the necessary mental capacity. The issue with dementia is that a person’s mental capacity can vary day by day or even hour by hour. So they may well be able to make a Will on a “good day”.

Dementia is a term used to describe a range of conditions which affect the brain. The most common types are; Alzheimer’s disease, Vascular Dementia, Dementia Lewy bodies, Frontotemporal Dementia and Mixed Dementia. There are however over 200 subtypes of Dementia (Dementia UK).

An individual’s capacity to do something is assessed with the nature of the particular task that is being considered in mind. In order for a will to be valid, a testator (that is the person making the will) must have sufficient ‘mental capacity’. The test for whether a testator has sufficient ‘mental capacity’ was set out in the case for Banks v Goodfell (1870) which states the testator must:

  1. understand the nature of making a will and its effects;
  2. understand the extent of the property of which they are disposing;
  3. be able to comprehend and appreciate the claims to which they ought to give effect; and
  4. have no order of the mind which perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

It is an old case but has stood the test of time.

It is therefore vital that the testator seeks independent legal advice from a qualified solicitor when making a will. By instructing a solicitor, the solicitor is able to take various steps to satisfy themselves as to the testators’ mental capacity. This can provide key evidence in the event of a challenge to the will.

Similarly, if a person is considering challenging a will on the grounds that the testator lacked capacity due to a diagnosis of dementia, it is important to seek independent legal advice from the outset.  A solicitor can help you obtain details of what steps were taken at the time to assess the testators mental capacity and advise you on the merits of any will challenge.

So don’t always assume a person with a diagnosis of dementia can’t make a will.

If you would like more information or to discuss a will dispute, please contact our team on 01228 516 666.

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