Can I make a new Will if I have Dementia?

In short, the answer to this question is absolutely yes, a diagnosis of any type of cognitive impairment or specifically Dementia does not prevent an individual from drawing up a new Will, or from making changes to an existing Will in most circumstances. At Thornton & Lee we meet individuals with Dementia regularly, who are financially astute, well informed, and absolutely know with purpose exactly how they wish for their estate to be divided upon their death. However, it is also important to note that you do not need to be financially astute in order for us to make a conclusion of Testamentary Capacity, so long as you have a general and proportionate awareness of your estate, an understanding of those who might have a claim upon your estate, and are able to discuss with rationale how you would like to divide your estate upon your passing.

Regardless, it is quite likely that if you have Dementia that your legal representative will suggest that a specialist report, called a Testamentary Capacity Assessment is completed and filed alongside your Will.

Learning that you have a diagnosed cognitive impairment such as Dementia can often act as a catalyst and motivation to want to ensure all of your affairs are in order, such as making Lasting Powers of Attorney, making a new Will, or making changes to a previous Will. As Mental Capacity Assessors, we meet many individuals who are motivated to ensure that their Will is up to date following a diagnosis of Dementia.

What is Testamentary Capacity

Testamentary Capacity is a legal phrase used to describe that an individual was of satisfactory sound mind, and had adequate understanding, at the time the Will was made. The Courts advise that the ‘Golden Rule‘ should always be followed when drawing up, or making amendments to a Will;

‘No matter how straightforward matters may appear, when making a Will as a Testator who has suffered serious illness, a Testamentary Capacity Assessment should be considered, the findings of which evidenced and recorded. Thus reducing the likelihood of a contested probate, ensuring the testators wishes are honoured after their passing’.

As you can see the bar for requiring a Testamentary Capacity Assessment is actually quite low. Whilst having a diagnosis of Dementia does categorically not equate that you lack Testamentary Capacity, it does leave you vulnerable to later challenge from those in your network who might have a claim upon your estate and can lead to untimely and costly problems at probate after your passing.

For those individuals with a diagnosis of Dementia, having a robust Testamentary Capacity report filed with your Will, can sufficiently minimise the risk of a successful legal challenge regarding the content of your Will from anyone who might have a claim upon your estate after your death.

There is no ‘wrong answer’ when it comes to your choice on the division of your estate. All we concentrate on as Mental Capacity Assessors is listening to your views, and recording that you have given your options due thought and reflection when you came to your decisions within your Will.

My memory is better at some times than others

As experienced Mental Capacity Assessors and Dementia Friends, we will ensure that our friendly and conversational approach will put you at ease and give you the maximum opportunity to be able to voice your wishes for your estate on your death. We understand that for those with Dementia there can be a significant differences in short term memory at different times of the day. For example, a person with Alzheimer’s might experience Sundowning and confusion in the afternoon, but be perfectly lucid and able to express their wishes in the morning, and so that is when we will book to see you. Through our thorough triage process, we will ensure we meet with you at your best, we also consider if visual prompts such as photos from our stock images, or written information might be used as a supportive measure assisting you to articulate what your wishes for your Will might be. We use Face Visors instead of face masks as PPE to help those who benefit from lip reading to support communication. We also check pre appointment that you are free from acute medical conditions that can cause confusion such as unstable blood sugars, or a urine infection, minimising any risk of you not being able to tell us your wishes accurately on the day of the appointment.

Testamentary Capacity assessments and coercion

Coercion is ‘persuading someone to do something’, and when it comes to Will’s, if an argument can be made that the individual who made the Will was being coerced at the time it was executed, then the Will may not be valid, and vulnerable to being successfully contested later down the line. Post the Covid-19 pandemic the Ministry of Justice is reporting an almost 20% increase in the amount of Will’s which are being contested. At Thornton & Lee we triage each individual case very carefully to ensure the best method of assessment is chosen to suit the individuals needs and circumstances. When we meet with an individual to be assessed another essential part of the appointment process is exploring motivation and decision making with the individual, to assess and conclude within our report that the individual is making decisions for the distribution of their estate within their new Will of their own free will. Consequently, all face to face assessments completed must be undertaken without any proposed beneficiaries in attendance, although they are welcome to be at the appointment venue for initial introductions and to ensure that their loved one is at ease and comfortable to proceed, before leaving. However, face to face testamentary capacity assessments are not for everybody, and there might be occasions whereby a video assessment is preferred by the person to be assessed due to personal or practical reasons. At Thornton & Lee we suggest that if the individual being assessed is unable to facilitate the video appointment themselves, that an excellent solution is for the video assessment to take place at their Legal Representatives office, with support there to operate the video technology. This approach ensures that the report produced is legally robust and can fully and objectively explore coercion and undue influence, which can then be documented within the report and making it legally robust.

What happens if I’m assessed as not having Testamentary Capacity

Our experienced Mental Capacity Assessors will do all we can to ensure that we get the best out of the individual on the day, using a friendly and conversational approach. Before the appointment we will carefully prepare to ensure the best communication methods are chosen to suit individual need, and that the time and date of the appointment is chosen to promote when the individual is likely to be at their best cognitively. However, occasionally despite our best efforts, we have to make a conclusion that the individual lacks the necessary Testamentary Capacity. In these cases, your legal representative might suggest applying to the Court of Protection for a Statutory Will. Thornton & Lee are able to assist with a specialist Mental Capacity report submitted to the Court alongside the Statutory Will application

You can find out more about Testamentary Capacity Assessments or call our friendly experienced team of Independent Social Workers on 0333 772 9315