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I have been diagnosed with Dementia – can I still make a Will?

I have recently been diagnosed with Dementia and my GP has suggested that alongside medical and social support, I make sure that my legal affairs are in order. My friend has told me that as I have a diagnosis, I can no longer make a Will. Please can you help?

Receiving a diagnosis of Dementia is a difficult time and you may be experiencing lots of changes and emotions. It’s great that you have family and friends that you can talk to about your dementia journey and well done for thinking about sorting out your legal affairs.

It is a common misconception that a person living with dementia cannot make a new Will.  Whilst dementia will prevent some people being able to do so, it is not an automatic bar, and we will first need to consider whether you have mental capacity to make a Will.

Mental capacity is not black and white. You will have capacity to do some things but may not have capacity to do others. For example, you may be able to plan and buy your weekly food shop, but you may not be able to understand how to manage a complicated investment portfolio.

It is your legal adviser’s job to assess whether you are able to understand the implications of making a Will, using a standard test called Banks v Goodfellow. Banks v Goodfellow states that if a person:

  1. Understands that a Will is a document that sets out who will inherit their estate on death;
  2. Can recall the nature and extent of the property they are giving away;
  3. Understands and recalls the people he or she should consider when making a Will; and
  4. Is not affected by any disorder of the mind that affects his or her ability to properly consider the disposition of property

then they will be able to make a Will. In cases where someone has a diagnosis of dementia and the legal adviser thinks that it is affecting their ability to make these decisions, they may request that you also obtain an independent assessment of your capacity. This can be used as evidence in the event that your Will is challenged after you have died.

At Mayo Wynne Baxter, we are experienced in preparing Wills for people who have a dementia diagnosis. We run regular dementia training events and lots of our legal advisers are Dementia Friends. If you would like to discuss your requirements, Lauren Puttock-Brown would be pleased to have an initial conversation with you should you have any questions about making a Will. Lauren is an Associate Chartered Legal Executive and is also the Secretary of the Lewes and District Dementia Action Alliance. Lauren works closely with lots of clients at different stages of their dementia journey.

If you’d like to know more….

There have recently been two high profile cases which have specifically involved people who have made Wills after a diagnosis of dementia, which highlight the importance of taking the right steps to prepare a Will.

In the case of Biria v Biria Mr Biria was 95 when he signed his Will in May 2020. At the time, there were court proceedings ongoing to decide whether Mr Biria had mental capacity to manage his affairs, as he had dementia, which was getting worse.  In August 2020 a capacity assessment carried out by a doctor found that Mr Biria was sufficiently advanced that it made him unable to manage his property and financial affairs.

As a result of this report, Mr Biria’s son challenged the validity of Mr Biria’s Will. The doctor concluded that at the date the Will was signed, Mr Biria would not have been able to understand the extent of his property, or the potential claims by relatives. He would therefore fail points 2 and 3 of the Banks v Goodfellow test. The court decided that the evidence was sufficient to indicate that Mr Biria did not have mental capacity to make a Will in May 2020 and the Will was found to be invalid.

In the case Leonard v Leonard the family of Dr Leonard’s first marriage challenged the validity of a Will made in 2015, which left a larger share of his estate to his second wife and her family. Dr Leonard prepared a Will over the course of two years, during which time he was showing signs of dementia. Dr Leonard received a formal diagnosis of vascular dementia in 2016.

The court looked at expert evidence which provided retrospective reports on Dr Leonard’s capacity to make a Will in 2015, but also focussed on the actions of the Will writer. The Will writer was not a qualified lawyer but was an experienced Chartered Tax Adviser. She had taken instructions by email and telephone over the course of two years but had not met with Dr Leonard in person. She was criticised for not taking more care when dealing with an elderly client who appeared to be having difficulty understanding the draft Will, and for failing to notice that communication was often sent by Dr Leonard’s wife, rather than from him directly.

Ultimately, the court decided that Dr Leonard did not have capacity to make the Will in 2015, and his earlier Will, made in 2007 would instead govern the distribution of his estate. 

To avoid challenges to Wills after death, a legal adviser should take extra steps when helping a client with dementia to make a Will. Although not all of the steps below will be appropriate for everyone, your legal adviser may do some of the following:

  1. Ask you or your carer what time of day is best for a meeting – are you more alert in the morning, or do you find it easier to communicate in the afternoon?
  2. Rearrange the meeting – if you are struggling to answer questions we need, we may ask to rearrange for another day to give you the best chance of being able to express your wishes.
  3. If you already have a Will, we may discuss the reasons for the changes, so we can understand why you are looking to change your Will.
  4. Use examples to help illustrate how your estate will be divided in different contexts.
  5. Ask you to repeat back to us in your own words, so we know you have understood the advice.
  6. Meet with you more than once to make sure your instructions are consistent.
  7. Prepare the Will quickly after you have given instructions.
  8. Ask you about any medical conditions or medication as these can affect your ability to understand and make a Will.
  9. Ask for an independent capacity report to support that you have capacity to make the Will.
  10. Make notes of the meeting so we can refer back to them later if needed.