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Can someone with dementia make a Will?

New figures produced by the Office for National Statistics show that in 2018 nearly a quarter of women who died aged over 80 died of dementia. Dealing with the affairs of individuals with dementia will therefore become an increasingly prevalent problem in the coming years. Many of those with dementia may not have made a Will, or their Will may be outdated. We consider what can be done in those circumstances.

Can someone with dementia make a Will?

The answer to the question is: possibly, it depends. An individual’s capacity to do anything is assessed with the nature of the particular task that is being considered in mind. Some tasks (litigating in the courts, for example) demand a higher level of understanding than others. Everyone is presumed to have capacity unless it can be shown that they do not. When it comes to making a Will, in order for the Will to be valid the testator must have capacity to make a Will and this is assessed in accordance with principles set out in case law. An individual will be regarded as having capacity if they understand what making a Will means and its effects, if they are aware of the extent of their assets and are aware of those who might have a claim to benefit under their Will.

For example

Margaret is an 80 year old widow with two adult children. She has very recently been diagnosed with vascular dementia. Margaret, however, remains quite well. She knows what a Will is and that it will determine how her estate is distributed after her death; she knows that she owns her home and has a small savings account and she is aware that she has two children who, in the normal course of events, would expect to inherit her estate. It is likely that Margaret would have capacity to make a Will, although an assessment of her capacity would have to be carried out.

Incidentally if Margaret made a Will and chose to disregard the claims of her children, and to benefit her favourite charity instead, this does not mean that she lacks capacity, although it might lead to a claim against her estate by her children on the grounds that Margaret has failed to make reasonable financial provision for them.

What if Margaret does not have capacity to make a Will?

What can be done if Margaret’s dementia is more advanced, and she is assessed by a medical professional who decides that she does not have capacity to make a Will? First, it’s necessary to decide whether any action needs to be taken. If Margaret dies without a Will, under the intestacy rules that would then apply, her assets would be divided between her children, so in those circumstances there’s no need to do anything.

If, however, Margaret does not have children, and no close relatives, but has supported a particular charity throughout her life, it may be in Margaret’s best interests for a Will to be made leaving her assets to the charity, rather than her estate passing to the Crown by default.

How can a Will be made for Margaret?

An application can be made on Margaret’s behalf to the Court of Protection (which oversees the affairs of mentally incapable persons) for a statutory Will to be made on her behalf. The Court will require medical evidence and details of Margaret’s assets in order for it to decide whether making a Will for Margaret in the terms suggested by the applicant would be in Margaret’s best interests. The Official Solicitor is likely to be appointed by the court to represent Margaret, and if there are any individuals likely to be prejudiced by the proposed Will they would be made parties to the application so that their views can be considered.

If approved by the Court, the Will will be exactly the same as one made by someone with capacity except that it will be signed on Margaret’s behalf.

Other reasons for considering an application for a statutory Will include: if an existing Will’s provisions are outdated (perhaps the main beneficiaries have died), the executor is now an inappropriate choice, or, if someone has a large estate, to make a tax efficient Will.

Contact a statutory will solicitor

Clarke Willmott are specialists in making statutory Will applications for people that don’t have the capacity to make one themselves. Please contact us if you need further information.

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