The fact that somebody has a diagnosis of dementia does not necessarily mean that they are unable to make a will. Determining whether someone can make a will depends on whether they have the “mental capacity” specifically to make a will. Mental capacity is the ability to decide at the time that it needs to be made.
A court case made in 1870, known as Banks v Goodfellow set out the specific test of capacity needed to make a will, this is known as “testamentary capacity” and describes the person’s legal and mental ability to make or alter a valid will. The judge in that case said that the person making the will must:
- Understand the nature of making a will and its effects
- Understand the extent of their property
- Understand and appreciate their moral obligations to other people in the making of the will, and be able to identify the people concerned.
Where someone lacks the mental capacity to make a will, any will produced on their behalf will be invalid unless it has been authorised by the Court of Protection.
The process of making a will when someone has dementia
Where someone has dementia, it is important to instruct a specialist lawyer, who is not only an expert in the law relating to wills but understands the law relating to mental capacity. They should also have the skills needed to communicate with the person concerned.
Where a lawyer has any doubt as to whether the person making the will has testamentary capacity, they should instruct a professional with expertise – such as a doctor specialising in dementia or a psychologist – to assess the client’s mental capacity. This will involve the professional writing a report or agreeing to witness the will.
Occasionally someone may have the requisite mental capacity at the time that they give instructions, but not at the time they come to sign their will. In these circumstances, the will may be valid provided that the person concerned:
- Had the necessary mental capacity when they gave instructions for their will; and
- They remember giving their earlier instructions at the time that they sign the will.
What can be done when someone has lost testamentary capacity?
If somebody has lost testamentary capacity, and either has not made a will at all or has a will that is no longer appropriate to their circumstances, it is possible for someone – usually a deputy or attorney – to apply to the Court of Protection for authority to make what is known as a “statutory will”.
The Court of Protection deals with the affairs of people who have lost the mental capacity to make key decisions for themselves. The court will need to be satisfied that the person concerned (“P”) does not have testamentary capacity and, broadly speaking, that:
- It is in P’s best interest to make a will, or a fresh will; and
- The contents of the will proposed by the applicant, are in P’s best interests.
Everyone who would be affected by the proposed will – for example, beneficiaries under an existing will, or under the “intestacy rules” (which apply when someone dies without having make a valid will) – has the opportunity to make representations. If the court agrees that the proposed will is in P’s best interests, it will set out how the will should be executed, on P’s behalf, by the person authorised by the court. The court then seals the will.