According to NHS statistics, 850,000 individuals in the United Kingdom have dementia. As a result of the increasing number of people living longer, this figure is expected to rise. In light of this data, many people with dementia will want to address their legal issues around making a Will.
Making a Will when you have dementia
It is possible to challenge a Will if it was not made by someone who was of sound mind. It does not automatically render a Will invalid if someone has dementia or suffers from any other mental illness while creating their Will.
A Will can only be created by someone who understands the following:
- The fact that they are creating a Will and its consequences.
- The claims of those who might expect to be left something in the Will.
- The extent of their property and assets.
- 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 all of these criteria. It is not the case that whether or not they qualify depends on their overall health, which includes dementia; rather, it’s their cognitive awareness at a specific moment in time.
Is it possible to challenge a Will made by someone with dementia?
Someone who wants to challenge a Will would need to provide medical evidence that the person creating it did not have capacity (i.e. inability for someone to make a decision for themselves due to an impairment of the brain).
If a Will is declared invalid, it will be replaced with the most recent written Will. If no previous Will can be found, intestacy rules apply. The Intestacy Rules are defined by the Inheritance and Trustees’ Power Act. They look at family connections to determine who gets what. Family relationships are not taken into account when determining inheritance.
A good solicitor or Will writer will check to see if medical evidence regarding the Will maker’s mental competence should be obtained before the Will is finalized when putting a Will together. The practitioner should also explain how they determined the Will maker’s ability to ensure that the Will is more resistant and vulnerable to being challenged.
If a Will is challenged in court, all of the evidence, medical and otherwise, will be thoroughly examined, so it’s critical to work with an experienced Will writer and legal expert throughout this time.
What if a family member with dementia wants to make a Will?
If you want to make a Will for yourself or your family, or if you feel that someone’s capacity was restricted when their Will was made, or if you’re an executor of a Will being challenged, it’s important to speak with a solicitor who can guide you through the process.
If you have any more questions surrounding contesting of a Will or Will writing, you can contact the contesting a Will team at Myerson Solicitors, who can support you through complex cases.
