Making a Will with a Dementia Diagnosis

Being diagnosed with dementia does not necessarily mean that you do not have the capacity to create a new will, create a Lasting Power of Attorney or sign other legal documents. However, where capacity is questioned it is important to speak to a solicitor to get advice for peace of mind and security.

Everyone should keep their will under constant review as their situation changes or if a significant amount of time goes by. A will may need updating due to a change in relationship, a death or an increase or decrease in the size of the estate. If a person has been diagnosed with dementia, it makes it all the more important to ensure that the legal papers are put in place in a timely manner to accurately reflect their current wishes and situation.

The Test for Testamentary Capacity

When you meet with your solicitor to discuss your new will, they will need to establish that you have the required testamentary capacity (the capacity to make a will). Capacity is time and place specific and should be assessed individually and according to your condition on that day and at that time. If you are found to not have capacity on one day this does not stop you from having the required capacity on another day if your condition improves.

The test for testamentary capacity was held in the historic case of Banks v Goodfellow (1870). The case outlined that a person creating a will must demonstrate the following things in order to be found to have testamentary capacity:

1. They must understand the nature of creating a will and its effects. This means that a person must demonstrate that they know what a will does and must understand that they are giving away their assets and possessions.

2. They must understand the extent of the assets and property they own and are giving away upon death. A person does not need to be able to recall every single item and asset they own, but they must know generally and have an awareness of what their estate consists of, including anything that they expect to receive in the future or anything which is owed by them.

3. They must understand the people who would be considered to have an interest in their estate even if the person ultimately decides not to leave anything to those people. These can be people who might have either a moral or legal claim on their estate. The person should also understand their closeness and relationship to the people in order to leave a sufficient and proportionate gift.

If someone with deteriorating mental capacity is leaving someone out of their will it is important to take legal advice on the risks of a successful claim against the estate.

4. The person must not have a “disorder of the mind or insane delusion” which would result in the distribution of their estate in a way which they would not have done if they had been of sound mind.

This means that the dementia must not be so far advanced that it would affect the wishes of the person making the will.

The level of understanding required with regards to the above test depends on individual factors. For example, the complexity of the will, the complexity and size of the estate and any potential claims on the estate.

The other law relating to the issue of testamentary capacity is the Mental Capacity Act 2005 (MCA). There was uncertainty as to whether the act replaced the capacity test in Banks v Goodfellow above, however the case of Walker v Badmin (2015) confirmed that “the correct and only test” for testamentary capacity is the one outlined in Banks v Goodfellow and therefore the MCA should work alongside but not in substitution of the test.

The main differences between the case law and the MCA 2005 is that the act presumes that a person has capacity unless proven otherwise, and the act also suggests that a person must understand all relevant information rather than merely having an awareness. This means the test under the MCA 2005 is more stringent.

Even if all of the above elements are satisfied this does not stop a will from being disputed later down the line. Your solicitor is likely to request a medical assessment in order to evidence your capacity to make a will at the time you are making it.

Getting a Capacity Assessment

In the case where there are concerns about a person’s capacity, your solicitor may ask for a capacity assessment from either your GP or a capacity expert. Whether this is done by a GP or a Capacity Assessor depends on how much the disease has progressed and the severity of the symptoms presenting.

Time is of the essence with dementia because it is a progressive disease which will eventually deteriorate. If a person is found to not have testamentary capacity, then their assets will either pass under the terms of a previous will or under the rules of intestacy if there is no will in place. A statutory will may be an option: this is when a will is made on behalf of an incapacitated person under the authority of the Court of Protection by someone other than the testator under strict guidance.

If you are making a will or other important legal documents with a dementia diagnosis, it is important that you act swiftly while you still have capacity and that your capacity is evidenced.