Can I make a valid will if I have dementia or Altheimers?

With dementia and Altzheimer's increasingly affecting an aging population we are frequently consulted about whether medical conditions of this type can prevent someone from making a valid will.

We deal with enquiries on behalf of disappointed beneficiaries wishing to challenge the validity of a will, as well as being asked to advise those making a will on how such challenges can be avoided.

The most common misunderstanding in this area is the belief that just because someone has dementia they will automatically lack testamentary capacity.

The law is rarely black and white and the recent case of  Lloyd -v- Jones illustrates this perfectly.

Doris Harris died in 2010. In her home made will, executed in 2005, she left her daughter just £10,000 while the rest of her £600,000 estate went to her son and his wife.

Her estate largely comprised the family farming business which she had farmed with her son and daughter in law since the death of her husband.

When Doris made her will she was suffering from dementia and experiencing poor memory, confusion and delusions.

Her daughter contested the validity of the will on the grounds of lack of testamentary capacity and want of knowledge and approval. She based her challenge on the fact that Doris began to suffer mental decline from 2001 and in 2004 was suffering from various symptoms associated with Alzheimer's and dementia. The claimant relied on an application for attendance allowance made by Doris' sister shortly after the will was executed. Doris, it was said, was too ill to sign the form herself. The form stated that she was suffering from dementia, had associated memory loss, heard voices and experienced delusions. It was further stated that Doris could not be left unsupervised and required a high level of care.

Expert medical evidence was also presented to show that when she signed the will Doris was suffering from moderate to severe dementia.

However, although the court accepted there was genuine doubt about Doris' capacity it dismissed the challenge. Doris may have suffered from dementia and experienced delusions but this did not necessarily indicate a loss of understanding that would put Doris below the threshold for mental capacity set out in the leading case Banks v Goodfellow, which has been good law since it was decided nearly 150 years ago.

Concluding that Doris did have capacity to make the will, understood its terms and knew and approved the contents the judge said he was satisfied that Doris retained her mental capacity beyond 2005.

The case further underlines the fact that loss of mental ability is not in itself sufficient to invalidate a will. The diagnosis of dementia and/or a history of significant loss of memory alone will not be enough to establish that someone would fail the Banks v Goodfellow test.

The courts will look at whether the testamentary dispositions are reasonable and logical. In this case the existance of an ongoing farming partnership was taken into account . Judges will also consider whether the terms of a will are simple enough for someone with dementia to understand.

If you require guidance on the issues raised by this case (either about making a will or challenging the validity of a will) then please take advantage of our FREE legal helpline. You can call freephone 0808 139 1599 or simply send us an email with details.