My Mum has dementia. Can she still make a will?

With cases on the rise, today’s blog explores the issue of dementia in relation to making a will.

One million people in the UK are expected to have dementia by 2025, increasing to two million by 2050, according to recent research produced by King’s College London and the London School of Economics for the Alzheimer’s Society. These figures represent a significant increase from the estimated 850,000 people who live with dementia in the UK currently.

A diagnosis of dementia may present a problem for individuals who wish to create a will because, in order for the will to be valid, a testator must have sufficient mental capacity as defined under s.2 of the Mental Capacity Act 2005.

Section 2.1 states that “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

In regard to making a will, the testator needs to understand:

1)   The nature of the will and its effects;

2)   The extent of their property;

3)   The claims to which they ought to give effect.

This can be difficult to apply to those suffering with dementia because their mental capacity can fluctuate with each day, particularly in the early stages of diagnosis.

Despite these difficulties, it is very important to state that, owing to section 2.3(a) of the 2005 Act, a diagnosis of dementia does not automatically mean mental capacity cannot be established; it is possible for an individual suffering with dementia to validly make a will.

However, the risk is that such a will may be open to challenge. A medical certificate of capacity, obtainable from your GP or via GP referral to a specialist, may help to alleviate this risk. Alternatively, if an individual has lost mental capacity, an application to the Court of Protection could be considered to allow for a statutory will to be made on their behalf.

If you would like information or advice about a will being disputed on the grounds of lack of mental capacity, or any type of contentious probate case, please call 01902 424927 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details.

We have a dedicated practice team of contentious probate solicitors, covering all areas of the UK (with offices near Birmingham and in Wolverhampton) who are experienced in dealing with all types of contentious probate matters, including challenging a will and estate disputes.

We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time.

We offer an initial no obligation telephone consultation for contentious probate disputes and we can sometimes act for clients who want to contest a will or commence an inheritance dispute/probate dispute on a no win no fee basis.