Victoria Riddleston
Senior Associate Solicitor
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Date Published:03 Nov 2016 Last Updated:22 Jul 2021

Dementia, capacity and Wills; what is the effect?

Dispute Resolution

Dementia, capacity and Wills

As the population age increases, so does the likelihood of dementia. According to Alzheimer’s UK 2014 study, it is estimated that 850,000 people in the UK will be living with dementia in 2015. What happens, therefore, if someone wants to make a Will, or has made a Will, whilst suffering from dementia?

From the outset it must be remembered that someone with dementia does not necessarily lack capacity to make a Will. However, if someone has dementia, additional steps should be considered if they wish to make a new Will. If the person has died, it may be necessary to investigate their circumstances surrounding the Will to ascertain whether it is valid.

Making a Will

If a person with dementia wants to make a Will then it is advisable for them to see a solicitor. A specialist solicitor will have experience with assisting people with fluctuating capacity and know what questions to ask to take a view on capacity. The solicitor may also advise instructing a medical professional to prepare a report on the person with dementia to assess their level of capacity and whether they have the necessary understanding to make a Will. Capacity fluctuates and the level of understanding required will depend on the decision being made. Such reports will assist with ensuring that challenges to the Will are not successful. If it is deemed that the person does not have capacity, and a new Will is required, then it is possible to engage in the Statutory Will process.

Challenging a Will

It is possible to challenge a Will after someone has died for a number of reasons, including asserting that the Will is invalid as a result of lack of capacity. Broadly speaking, the law on this area requires a person making a Will to understand that they are making a Will, to be able to consider the claims which may be made against their estate, to understand the assets in their estate and not be suffering from a disorder of the mind which affects their capacity. If a person is deemed to have lacked capacity to make the Will, the Will shall be invalid and any previous Will shall take effect. If there is no Will, the estate will be distributed according to the rules of intestacy, which may result in the assets being distributed in a way which the maker of the Will did not intend.

In summary, therefore, the rules surrounding capacity and making a Will is not a simple one. Whether a person has capacity to make a Will depends on a number of factors including their understanding on the day on which they are making the Will, the extent and complexity of the Will and other factors such as family relationships and dependants.

If you wish to discuss any of the issues arising from this blog please feel free to contact me at victoria.riddleston@ellisjones.co.uk or 01202 057768.