Can someone with dementia make a will?

With 21 September marking World Alzheimer’s Day, Chloe Fitzgerald of Brodies LLP looks at how dementia and Alzheimer’s can affect the legality of a will.

Demension Alzheimer's Will Making

Can a person with Alzheimer’s make a will?

With almost 50 million people living with dementia worldwide, World Alzheimer’s Day is an opportunity for organisations and individuals to raise awareness of the condition (and dementia) and to consider what we can do to support those affected.

Dementia is an umbrella term which refers to a variety of illnesses and conditions (of which Alzheimer’s is just one) that result in an impairment of the brain and a decline in intellectual functioning.

So, if you want to make decisions about your estate and what happens to your assets when you die, can you still make a will if you have been diagnosed with dementia? Unfortunately, there is no straightforward answer to this question. First, we must consider what is required to make a will.

What does 'testamentary capacity' mean?

To make a valid will, the individual (also known as the testator) needs to have ‘testamentary capacity’. This will be put into writing when the will is signed.

To have testamentary capacity the testator must be capable of understanding the following:

  • what a will is, and the nature and effect that it will have
  • the extent of what they will be leaving in their will
  • the obligations which someone in their position would usually have towards their family and other relevant individuals

The Mental Capacity Act 2005 (‘the 2005 Act’) refers to incapacity if a testator is unable to understand the information relevant to the decision, or retain the information, or communicate this decision. However, someone who struggles to retain the memory of their decisions may still have capacity to make and execute a will. Alternatively, a person who does not have capacity to make a will may still be able to carry out other acts (eg buying groceries). Incapacity can take time to develop, particularly with dementia.

What is a statutory will?

Should an individual lack testamentary capacity, it is possible under the 2005 Act to apply to the Court of Protection for a ‘statutory will’ to be prepared.

The Court will make a statutory will on behalf of a testator and must act in the best interests of the testator. They must consider the testator’s past and present wishes as well as their feelings, beliefs and values that would likely influence the testator’s decision if they had capacity.

The Court is most likely to execute a statutory will if the testator has never executed a will, or if there has been a significant change in the testator’s circumstances.

What should I do if I think a will is invalid?

If there is uncertainty about the validity of a will and whether the testator had capacity when putting a will in place, this can lead to the will being contested and difficulties in administering the estate following the individual’s death.

If there are any doubts or concerns about capacity, medical advice should be sought for clarification, to avoid any future complications.

Plan early for your future

In any situation like this, advice should always remain the same for everyone: plan and plan early. With an ageing population and increases in life expectancy, everyone should be encouraged to put a will and power of attorney in place in good time. This will ensure that your wishes are respected following the time of your death or if you become incapable and unable to look after yourself and your affairs. 

About the author

Chloe Fitzgerald is an Associate in Personal and Family at Brodies LLP. Chloe has a broad range of experience and provides advice on matters including the preparation of wills and powers of attorney, estate and succession planning and the administration of trusts and executries.

See also

What to do after someone dies: a checklist​

Is there an intestacy? How to tell if a will is fraudulent

Dying without a will - how the rules of intestacy affect who manages the estate

Find out more

Make a statutory will on behalf of someone else (Gov)

Tell Us Once (Gov)

Mental Capacity Act 2005 (Legislation)

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