Dementia is a progressive condition that affects memory, cognition, and decision-making. As it advances, it can raise serious questions about a person’s ability to make important legal decisions, including the creation or alteration of a will. At Blackstone Solicitors, we often assist clients across England and Wales who are concerned about whether a person with dementia can validly change their will, and what factors need to be considered to ensure any changes are legally binding.
This article explores the legal principles surrounding testamentary capacity in the context of dementia, the practical challenges involved, and the steps that can be taken to protect both the testator’s intentions and the interests of their loved ones.
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Understanding Testamentary Capacity
The law requires that any person making or changing a will must have testamentary capacity at the time the will or codicil is executed. Testamentary capacity refers to the mental ability to understand the nature and effect of making a will.
The legal standard for testamentary capacity in England and Wales is derived from the 19th-century case of Banks v Goodfellow (1870). According to this case, a testator must:
- Understand the nature of the act of making a will;
- Know the extent of their property;
- Recognise the claims of those who might expect to benefit from the will (such as family members);
- Be free from any disorder of the mind that influences the dispositions contained in the will.
If a person with dementia can meet these criteria at the moment of making or changing their will, the law recognises that they have the capacity to do so.
Dementia and Capacity: It’s Not Always Black and White
A diagnosis of dementia does not automatically mean a person lacks testamentary capacity. Dementia varies significantly from person to person and even within the same individual over time. Someone in the early stages of dementia may still be fully capable of understanding their decisions and making valid changes to their will.
Because capacity can fluctuate, it is vital to assess the testator’s mental state at the exact time the will or change is made. This assessment requires a careful, often medical, evaluation to determine whether the testator understood the implications of their decisions.
Can a Person with Dementia Change Their Will?
Yes, a person with dementia can change their will, provided they have testamentary capacity at the time of making the change. This could involve:
- Altering specific gifts or bequests;
- Changing executors or trustees;
- Creating an entirely new will; or
- Adding a codicil (an amendment to an existing will).
However, because dementia can affect cognition and decision-making, it is critical to take extra care to ensure that any changes are valid and truly reflect the testator’s wishes.
How to Ensure Valid Will Changes When Dementia Is a Concern
To minimise the risk of disputes or claims of invalidity, several practical steps should be taken:
- Medical Assessment
Before making or changing a will, the testator should ideally undergo a medical examination by a qualified professional familiar with dementia. This assessment will document the testator’s mental capacity and can serve as important evidence if the will is later challenged.
- Independent Legal Advice
Engaging an independent solicitor who specialises in wills and capacity issues is essential. The solicitor can:
- Explain the implications of changes;
- Observe the testator’s understanding and voluntary decision-making;
- Provide a professional witness statement confirming the testator’s capacity.
- Clear Documentation
It is advisable to record the reasons for any significant changes, particularly if they differ from previous wills. This can help demonstrate that the changes were deliberate and made with understanding.
- Witnessing Procedures
Strict compliance with the formalities for signing and witnessing the will or codicil should be observed to prevent procedural challenges.
- Video Evidence (Optional)
Some solicitors may recommend recording a video of the testator discussing their intentions and demonstrating their understanding at the time of the will change. While not legally required, such evidence can be persuasive in court if the will’s validity is questioned.
What Happens if the Capacity of the Testator Is Later Challenged?
If a will or change made by a person with dementia is contested, the challenger typically alleges that the testator lacked testamentary capacity at the relevant time. The court will then consider all evidence, including:
- Medical records and expert opinions;
- Witness statements from solicitors, family, and friends;
- Circumstances surrounding the making of the will;
- Any documentary or video evidence.
The burden of proof lies with the person contesting the will, who must establish on the balance of probabilities that the testator lacked capacity.
If the court finds the testator lacked capacity, the will or amendment may be declared invalid, and the estate will be distributed according to an earlier valid will or under the rules of intestacy.
Common Issues in Dementia-Related Will Disputes
Disputes often arise because dementia can affect the testator’s behaviour and relationships. Some common issues include:
- Unexplained changes: Significant alterations to the will that exclude close family members or favour new beneficiaries may cause suspicion.
- Susceptibility to undue influence: A testator with dementia may be vulnerable to manipulation by carers, family members, or others.
- Lack of evidence: If no medical or solicitor evidence exists confirming capacity, it becomes harder to defend the will’s validity.
- Fluctuating capacity: Even if the testator had capacity at one time, subsequent mental decline can complicate the picture.
Because of these complexities, disputes involving dementia require specialist legal and medical input.
The Importance of Early Planning
Given the challenges dementia poses to will-making, early planning is crucial. If someone is diagnosed with dementia but still has capacity, it is wise to:
- Review and update their will promptly;
- Consider powers of attorney to manage financial and health decisions if capacity declines;
- Discuss intentions openly with trusted family members or advisors to reduce misunderstandings.
Such proactive steps can help protect the testator’s wishes and reduce the risk of future disputes.
How Blackstone Solicitors Can Help
At Blackstone Solicitors, we understand the sensitive nature of dementia-related will issues. We offer expert advice and support to clients across England and Wales on:
- Assessing testamentary capacity in the context of dementia;
- Drafting or amending wills for individuals with cognitive impairments;
- Advising on preventing and resolving will disputes;
- Representing clients in contested probate and capacity claims.
Our approach combines legal expertise with compassion, ensuring that the wishes of vulnerable individuals are respected and upheld.
Conclusion
A diagnosis of dementia does not automatically prevent a person from making or changing their will. The key factor is whether the individual has testamentary capacity at the time of the change. With the right medical assessments, legal advice, and careful documentation, people with dementia can make valid changes that reflect their wishes.
However, due to the complexities involved, it is essential to proceed with caution and professional guidance to minimise the risk of future challenges.
If you or a loved one is considering changing a will where dementia may be a factor, seek early advice from Blackstone Solicitors. We provide tailored support to help you navigate this sensitive area of law with confidence and clarity.
How we can help
We have a proven track-record of advising upon all aspects of private client work. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Private Client Solicitors
It is important for you to be well informed about the issues and possible implications of changing a Will. However, expert legal support is crucial in terms of ensuring a positive outcome to your case.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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