Research put together from the NHS shows more than 850,000 people in the UK have dementia. This number is expected to rise since people are living longer. With this in mind, it is likely that many people who have dementia will be looking to sort their legal affairs surrounding the making of their Will.
Generally, if a person is not of sound mind when they are making their Will, it may be possible to challenge it. When they make their Will, the fact that someone has dementia (or indeed any other mental health illness) does not render their Will to be invalid.
In order for a person to have the necessary capacity to make a Will, they must understand:
- The fact that they are making a Will and its consequences.
- The extent of their property and assets.
- The claims of those who might expect to be left something in the Will.
- They must not suffer any delusion of the mind which influences how they may deal with disposing of their property, i.e. leaving legacies in their Will which they would not have made had they been of sound mind.
A person with dementia can meet these criteria. It is not the person’s general state of health, including dementia at issue. Instead, it is the person’s cognitive understanding at a particular point in time, that is, when they are providing instructions to their solicitor.
Can I challenge a Will made by an individual with dementia?
If an individual was to challenge the Will, it would be necessary for them to prove, with medical evidence, that the person who has dementia making the Will did not have the capacity to do so.
Should a Will be found to be not invalid, then any Will that had been written previously will be deemed as the valid Will. If there is no prior Will, then the Intestacy Rules apply. The intestacy rules are set out in the Inheritance and Trustees’ Power Act. They determine who inherits what based on family connections. The rules do not take into consideration the closeness of your relationships or who is most in need.
A good solicitor or Will writer will assess when taking Will instructions, if medical opinion on the Will maker’s capacity should to be obtained before the Will is executed.
The practitioner should also record how they themselves have assessed the Will maker’s capacity.
If these practical steps are taken, it will make the Will more robust and less susceptible to challenge.
Should a Will be challenged in Court, all the evidence, medical and otherwise, will be looked at very closely.
What if a family member with dementia wants to make a Will?
If you have a relative with dementia (or other mental illness) who would like to make a Will, or if you consider that a relative lacked capacity when their Will was written, or you’re an executor of a Will that is being challenged, it is important to speak to a specialist solicitor when possible, as there could be complex issues surrounding the Will.
Should you have any questions surrounding the contesting of a Will, you can contact the Will Disputes Team at Myerson Solicitors.