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Currently, an estimated 982,000 people are living with dementia in the UK, a figure expected to rise to 1.4 million by 2040. With this growing number comes a greater need to ensure that Wills are made with full understanding and care. Dementia can raise understandable concerns about whether a Will truly reflects a person’s intentions, particularly if their mental capacity is in doubt. However, with the right legal guidance and proactive steps, it’s possible to protect a Will from future challenge and give peace of mind to everyone involved.
This article explains how dementia can affect testamentary capacity, what safeguards can help prevent disputes, and what to do if concerns arise. Our Wills & probate solicitors in Cardiff, Newport and Chepstow can offer advice to clients on preventing Will disputes that may occur, including cases involving dementia and mental capacity concerns.
When Does Dementia Affect the Validity of a Will?
Memory loss and other dementia-related symptoms are increasingly relevant when making or reviewing a Will. However, having dementia, or even a formal diagnosis does not automatically make a Will invalid.
Under UK law, a Will is only invalid if the person making it (the testator) lacked testamentary capacity at the time it was signed. The legal standard for this comes from the case of *Banks v Goodfellow (1870) *, which requires that a person must not have a mental disorder that distorts their understanding or decision-making. This means that while conditions such as Alzheimer’s disease can affect memory or reasoning, a person may still have the capacity to make a valid Will. Only when those symptoms significantly impair understanding might the validity of the Will be questioned. Taking precautions such as obtaining a medical capacity assessment can go a long way toward preventing such challenges later.
What Is Dementia?
Dementia is a collective term for a decline in cognitive function that interferes with daily life. It affects memory, communication, reasoning, and judgment. There are over 100 types of dementia, including:
* Alzheimer’s disease
* Vascular dementia
* Lewy body dementia
* Frontotemporal dementia
Symptoms vary by type and individual, and some people may experience a combination of different symptoms.
What Is Testamentary Capacity?
Testamentary capacity refers to a person’s legal and mental ability to make a valid Will. At the time the Will is made, they must understand:
* The nature and effect of making a Will
* The extent and value of their estate
* Who might reasonably expect to benefit from the estate
* The consequences of including or excluding certain individuals
Even with a diagnosis of dementia, a person may retain capacity if their understanding is intact at the time the Will is created.
The Four-Part Legal Test: Banks v Goodfellow (1870)
To have testamentary capacity, the testator must:
1. Understand the nature and effect of making a Will
2. Know the general extent of their property
3. Be aware of those who may have a claim on their estate
4. Not be affected by any mental disorder that influences their decisions about how their estate is distributed
This test remains the cornerstone of assessing capacity today.
The “Golden Rule” for Solicitors
To help protect Wills from future challenge, solicitors follow the “Golden Rule” obtaining a professional medical opinion when there are any doubts about a client’s capacity, particularly in cases involving dementia.
A solicitor should carefully document the steps taken to assess capacity, including notes of discussions and reasons for decisions made. These records can be invaluable evidence if a Will is ever questioned. Following the Golden Rule provides reassurance that the Will reflects the testator’s true intentions and can stand up to scrutiny.
How to Protect a Will from Future Challenge
Many Will disputes can be prevented with early advice and careful planning. Here are some practical steps that can help:
1. Seek Early Legal Advice: Involving a solicitor experienced in mental capacity issues ensures the process is handled correctly from the start.
2. Obtain a Medical Opinion: If dementia or cognitive decline is suspected, ask a GP or specialist to assess and confirm capacity at the time of signing.
3. Keep Detailed Records: Solicitors should record all instructions, meetings, and discussions about the testator’s wishes and capacity.
4. Choose Independent Witnesses: Independent witnesses can provide reassurance that the testator acted freely and understood their actions.
5. Review the Will Regularly: Wills should be reviewed if health or family circumstances change, especially after a diagnosis of dementia.
By taking these preventative steps, individuals and families can minimise the risk of costly and distressing disputes later.
Why Capacity Can Be Complex
In conditions such as dementia, capacity may fluctuate. Someone may appear lucid one day but confused the next. This variability can make it difficult to determine whether the testator had capacity at the precise time the Will was signed. Obtaining a medical report and maintaining clear solicitor’s notes at the time of making the Will can provide the clarity needed to avoid future disputes.
What Happens If Concerns Arise After the Will Is Made?
If concerns about a Will’s validity arise later, perhaps because the testator’s dementia was more advanced than realised, legal advice should be sought promptly. In some cases, disputes can be resolved through discussion, mediation, or negotiation without going to court. However, if the matter proceeds formally, the person challenging the Will must prove that the testator lacked capacity at the time it was made. The court will consider medical evidence, witness testimony, and the solicitor’s records in reaching a decision.
What If the Executor Develops Dementia?
If an executor is later diagnosed with dementia and becomes unable to carry out their duties, they can step down or be replaced. Another named executor or a court-appointed administrator can then manage the estate according to the Will.
Our qualified legal professionals can help you protect your wishes. Alexis Thomas, Associate Legal Executive and CILEX Lawyer, is an experienced member of the Wills & Probate team at hpjv solicitors. With over 20 years’ experience she can provide advice on both preparing Wills that stand up to challenge. As a Dementia Friend, Alexis offers sensitive, informed support to clients and families navigating the complexities of capacity and inheritance law.
Whether you’re preparing a new Will, updating an existing one, or concerned about how dementia might affect a loved one’s estate, early advice can prevent conflict later. We offer a free initial consultation across ay of our 3 offices in Cardiff, Newport, and Chepstow. Don’t wait until issues arise, seek clarity now to protect your wishes and your family’s peace of mind.
