Can someone with dementia make a will?

Anne Minihane
Anne Minihane

With almost one in eight people dying from various forms of dementia it is important to understand where this leaves people when it comes to making a Will, says private capital specialist Anne Minihane from Clarke Willmott LLP who  have offices in Southampton.   


Anne, who is also a panel deputy for the Court of Protection which makes decisions on financial or welfare matters for people who lack mental capacity, says dealing with the affairs of individuals with dementia is likely to become an increasing problem in the coming years  
“Everyone is presumed to have capacity unless it can be shown that they do not. In order to have capacity to make a Will, according to case law an individual must understand what a Will is and its effects, know the extent of their assets and be aware of those people, such as close family, who might have a claim to benefit under the Will.


“For instance, take a person with dementia who has two children. If they understand what a Will is, and if they are aware that their assets include a house and some savings, and understand that their children, would, in the normal course of events, expect to inherit the estate, then it is possible they would have capacity to make a Will.


“However, if a person’s dementia is more advanced, and there is doubt over whether they have capacity to make a Will, the first step is for a medical professional to make an assessment as to whether they do or do not have the required capacity.


“If the result of the medical assessment is that an individual does not have capacity to make a Will, it’s possible to make an application to the Court of Protection for a statutory Will  to be made on their behalf.  Medical evidence would have to be produced showing that the individual lacks capacity to make a Will and the court will be asked to make a Will that is in their best interests.”

The Official Solicitor is likely to be appointed by the court to represent the individual. The court would decide who has to be told about the application. Those told could include, for example, someone named in a previous Will or others who would benefit under the intestacy rules that would apply if the individual died without making a Will.


“If approved by the Court, the Will will be exactly the same as one made by someone with capacity except that it will be signed on their behalf,” added Anne. “It will determine the distribution of their estate after their death.”
Other reasons for considering an application for a statutory Will include if an existing Will’s provisions are outdated, the executor is now an inappropriate choice, or, if someone has a large estate, to make a tax efficient Will as confirmed in a recent case.


Anne Minihane specialises in lasting powers of attorney and court of protection work and is a court appointed professional Deputy.
Clarke Willmott LLP is a national law firm with seven offices across the country including Bristol.


For more information contact Anne at: anne.minihane@clarkewillmott.com.

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