Can someone with dementia make a will? Imperial Law frequently hears this question from families concerned about whether a loved one can still record or revise their wishes after receiving a dementia diagnosis. The answer is yes, provided the person has the necessary mental capacity at the time the will is made or changed.
A dementia diagnosis does not automatically prevent someone from making a valid will. Capacity is specific to the particular decision and must be assessed at the relevant time. Someone may struggle with certain everyday tasks while still understanding what a will does, what they own and who may reasonably expect to benefit from their estate.
At Imperial Law, we help individuals and families approach these sensitive decisions carefully, respectfully and with appropriate safeguards.
What Is Testamentary Capacity?
Anyone making or changing a will must have testamentary capacity. This means they must be able to understand the nature and effect of the document they are creating.
The traditional legal test comes from the case of Banks v Goodfellow. Broadly, the person making the will should be able to:
- Understand that they are making a will and appreciate its effect.
- Have a general understanding of the property and assets they own.
- Recognise the people who may reasonably expect to benefit from their estate.
- Make decisions that are not being distorted by a disorder of the mind.
Perfect memory is not required. Forgetting exact bank balances, struggling to recall dates or occasionally becoming confused does not necessarily mean that someone lacks testamentary capacity.
Our guide explaining what it means to be of sound mind provides further information about capacity in legal decision-making.
Does a Dementia Diagnosis Invalidate a Will?
When families ask, “Can someone with dementia make a will?”, they often assume the diagnosis itself determines the answer. In reality, dementia affects people in different ways and can progress at very different rates.
Someone in the earlier stages may retain a clear understanding of their family, property and intentions. Another person may experience more advanced symptoms that prevent them from weighing up the consequences of their decisions.
The timing of the assessment matters. A person may have periods of greater and lesser clarity, sometimes referred to as fluctuating capacity. Medication, infection, tiredness, stress and the time of day can all affect how clearly someone communicates and understands information.
Under the Mental Capacity Act 2005, a person must not simply be treated as lacking capacity because of their age, appearance, condition or behaviour. Capacity must be considered in relation to the particular decision being made at that particular time.
How Is Capacity Assessed When Making a Will?
The solicitor preparing the will should speak directly with the person whose wishes are being recorded. Ideally, at least part of that conversation will take place without relatives or prospective beneficiaries present.
During the meeting, the solicitor may ask the individual to explain:
- Why they want to make or change their will.
- What property, savings and other significant assets they own.
- Who their close family members and dependants are.
- How they want their estate to be divided.
- Why they have included or excluded particular people.
- What they believe the consequences of those decisions will be.
These questions are not intended to catch the person out. Instead, they help the solicitor determine whether the individual understands the decision and is acting voluntarily.
Therefore, can someone with dementia make a will without answering every question perfectly? Potentially, yes. The assessment considers their overall understanding rather than demanding flawless recall of every detail.
What Is the Golden Rule?
Where an elderly person or someone with a serious illness wishes to make or change a will, solicitors may follow a recognised safeguard commonly called the Golden Rule.
This best-practice principle suggests that the person’s capacity should be assessed or confirmed by an appropriately qualified medical practitioner. Where possible, the medical professional may also witness the will or provide written evidence concerning the person’s condition and understanding.
Following the Golden Rule is not itself a legal requirement, and a medical opinion does not automatically determine whether a will is valid. Nevertheless, contemporary medical evidence can be extremely valuable if someone later alleges that the person lacked capacity.
Solicitors may also retain detailed attendance notes explaining the questions asked, the answers given and the reasons they believed the client had capacity. With the client’s agreement, other supporting evidence may be considered where appropriate.
Can a Will Be Changed During a Lucid Period?
In some cases, can someone with dementia make a will during a period of improved clarity? Yes, provided they have testamentary capacity at the specific time the instructions are given and the will is signed.
Fluctuating capacity makes careful planning particularly important. An appointment may be arranged for a time of day when the person is normally most alert. Meetings should take place in a calm environment, and information may need to be presented slowly and clearly.
Several shorter appointments may be more appropriate than one long meeting. However, the solicitor must remain satisfied that the person understands their decisions throughout the process.
Family members should avoid coaching the individual or answering questions on their behalf. Even well-intentioned involvement can later create suspicion that the person was pressured into making particular gifts.
Can Someone With Dementia Change an Existing Will?
Provided testamentary capacity remains present, someone with dementia can revoke an old will and create a new one. Changes may be needed following a marriage, divorce, bereavement, property purchase or change in family circumstances.
Small amendments can sometimes be made through a codicil, although creating a replacement will may be clearer and less open to misunderstanding. Anyone considering changes should obtain advice about the most suitable option.
Our guide on how to write a will explains some of the principal decisions involved, including choosing beneficiaries and appointing executors.
Crucially, can someone with dementia make a will simply because their relatives believe the existing document is unfair? The instructions must come from the individual. A family member cannot alter another person’s will, even if they hold a lasting power of attorney.
Can an Attorney Make a Will for Someone?
An attorney acting under a lasting power of attorney cannot make or change the donor’s will. A will is a personal document that must be created by the testator while they have testamentary capacity.
Where someone no longer has the capacity to make a will, an application may be made to the Court of Protection for a statutory will. The court will consider whether the proposed document is in that person’s best interests.
Applications can involve detailed information about the individual’s finances, family circumstances, previous wishes and current needs. Relevant family members and beneficiaries may also need to be notified.
The Government provides separate guidance on how to apply for a statutory will where someone cannot make or change a will independently.
Could the Will Be Challenged After Death?
A will made by someone with dementia may be challenged after their death, but a diagnosis alone does not prove that the document is invalid. The person disputing it would need relevant evidence supporting a recognised legal ground.
Medical records, solicitor attendance notes, witness evidence and previous wills may all become important. Courts may examine whether the person understood the will and whether another individual applied undue influence.
Concerns can become particularly serious where a new will makes an unexpected departure from long-standing arrangements or leaves a substantial gift to someone involved in organising the appointment.
Our article about contesting a will in the UK examines the legal grounds for a challenge and the importance of acting within the relevant time limits.
Why Acting Early Is Important
Ultimately, can someone with dementia make a will after symptoms have appeared? Quite often, yes. However, delaying the process can make capacity more difficult to establish and increase the possibility of a later dispute.
Early legal advice gives the person the best opportunity to explain their wishes in their own words. It also allows the solicitor to consider whether medical evidence or other safeguards would be appropriate.
Careful preparation can protect both the person making the will and the relatives who may eventually need to administer the estate. A professionally prepared document, supported by clear records, is more likely to reflect the individual’s genuine intentions and withstand later scrutiny.
If you need advice about dementia and wills, testamentary capacity or changing an existing will, please contact us. Imperial Law can provide sensitive, practical guidance based on the individual circumstances involved.
