Research shows that there are currently around 944,000 people living with dementia in the UK. 

With an ageing population fuelling a rise in dementia diagnoses, that number is expected to grow to over 1 million by 2025, and predicted to reach around 1.6 million by 2050, according to Alzheimer’s Research UK

Dementia mainly affects those over the age of 65, which is also around the time our attention often turns to ensuring we have the necessary legal documents in place to protect ourselves and our loved ones in the future. 

However, for those people who have yet to make a Will, does receiving a dementia diagnosis mean it is too late?  

In this article, Langley Wellington’s experienced Will-writing solicitors consider whether it is still possible to make a Will if you have been diagnosed with dementia. 

Can a person with dementia make a Will? 

Yes. A person with dementia can still make or update a Will, provided they can demonstrate that they understand what they are doing and the effect it will have. 

To make a valid Will, you must have ‘testamentary capacity’ when writing it. This means that you understand what you’re doing when you’re making it and the implications of those decisions.  

Dementia is a progressive condition that affects cognitive abilities, including memory, reasoning and judgment, and impairs our ability to remember, think, or make decisions. 

The ability of someone with dementia to make a Will depends on the severity of their condition and their capacity to understand the consequences of the decisions they are making. 

What is testamentary capacity? 

Testamentary capacity refers to an individual’s ability to make or alter a valid Will. A person making a valid Will must be able to demonstrate the following to be determined to have testamentary capacity: 

  1. Understanding. An individual must be able to understand the nature and purpose of what they are doing. 
  1. Awareness of assets. An individual must be aware of the nature of their assets, including property, savings and other personal effects. 
  1. Beneficiaries. When making a Will, you must be able to decide who will benefit from your assets and understand the implications. 
  1. Decision making. You must demonstrate independent and rational decision-making skills free from any undue influence. 

Testamentary capacity is assessed when giving instructions and at all subsequent meetings, including at the time a Will is signed and witnessed. 

What is the test for testamentary capacity? 

If someone thinks you didn’t have testamentary capacity when you executed your Will, they could use it as a reason to dispute it.  

Specialist legal advice is vital. If there are any concerns about an individual’s ability to make a Will, an experienced solicitor specialising in Wills can advise you on the best way to proceed. 

Although there is no legal requirement to involve a doctor in making a Will, the courts have set out a ‘golden rule’ that if someone making a Will is older, ill or has a condition that could affect their ability to make decisions, it’s best practice for a medical practitioner to check that the person has testamentary capacity. 

A solicitor with experience in estate planning and elder law will be able to help. At Langley Wellington, we have provided Wills advice to vulnerable individuals and their families across Cheltenham and Gloucestershire for many years. 

If you or one of your loved ones has received a dementia diagnosis, and want some advice on any implications it will have on your estate planning, please get in touch with our Wills team. You can call us on 01452 521286, email us at lawyers@langleywellington.co.uk, or make an online enquiry

What is a statutory Will? 

If someone is deemed to lack testamentary capacity, you can apply to the Court of Protection for a ‘statutory Will’ to be prepared. 

The Court will approve an application for a statutory Will based on the best interests of the person who has lost capacity and will consider various factors, including:  

  • The person’s wishes, such as any written documents from when they had capacity, and the practicality and rationality of these wishes. 
  • The degree of incapacity of the person. 
  • Any beliefs and values that might have influenced the decisions of the person. 
  • The views and opinions of other significant parties, such as someone currently caring for the person, relatives, or attorneys named in a Lasting Power of Attorney (LPA)

Will Writing Solicitors Gloucestershire 

A Will is one of the most important legal documents an adult can have.  

Making a Will and ensuring you have an LPA in place should be a crucial part of everyone’s estate planning and done in good time. Both serve as valuable ‘insurance policies’ for the future and provide valuable protection for you and your loved ones.  

At Langley Wellington, our team has extensive experience assisting clients with drafting their Wills and LPAs.  

To speak to our friendly and professional team today, please call 01452 521 286 (Gloucester) or 01242 269 998 (Cheltenham) or email lawyers@langleywellington.co.uk. Alternatively, you can fill in this contact form

Find out more about our Wills and Estate Planning services by clicking here

This blog is not intended to be taken as advice or acted upon. If you are seeking legal advice, please get in touch with our team of solicitors.