My Father has Dementia, if he Makes a Will, will it be Valid?

Ruth Wijay
Author:
Ruth Wijay
Head of Wills, Probate & Trusts
Date:
02/07/2013

 This article was reviewed and updated 26/05/2022.

 

When a person is diagnosed with dementia, it is often thought that they will become unable to communicate properly or comprehend what is going on around them. This is a common misconception, and many who are diagnosed live a full life.

However, there can be some complications if someone is diagnosed with Dementia but need to create or update their will. Whilst this is necessary, there may be a chance that it will not be valid.

In England and Wales, certain criteria must be met to ensure that the creation of a Will is legally binding. If your father has recently been diagnosed with Dementia, and you have concerns around his Will, here is some information which will be useful for you to consider.

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What Makes a Will Valid?

When creating a Will, there are certain requirements which need to be met to ensure that it is valid. These requirements are:

  • the person creating the Will must be over 18 years old;
  • the Will must be put in writing;
  • the Will must be signed by you in the presence of two witnesses;
  • the witnesses must also sign the Will in front of you;
  • the Will must be created without any pressure from anyone else.

A final requirement which could affect a Will’s validity is Testamentary Capacity; this means that, in the example of your Father updating his Will, he must have the mental capacity to do so. This also applies to those who are creating their Will.

Testamentary Capacity will be assessed by the Solicitor who is assigned to assist your father with his Will. They may also need to obtain medical advice to confirm. This is known as the Golden Rule.

When deciding if someone has testamentary capacity, a solicitor will consider:

  • if your father understands the nature of making a Will and its effects;

  • if your father understands the extent of the property or assets that they are giving away;

  • if your father has the capacity to understand who they are giving the property to.

What Happens if it is Decided That my Father Doesn't Have Testamentary Capacity?

If it is believed that your father does not have testamentary capacity, then he would be unable change or amend his Will. Furthermore, no one can make or change a Will on someone’s behalf. However, in certain circumstances, a Court of Protection Solicitor can make a statutory Will. Get in touch with a member of our Court of Protection Team if you have any queries.

If you have any concerns about your loved ones Will, or you would like some more information, then get in touch with our Wills and Trusts Solicitors today to see how we can assist you.

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