When considering the testamentary capacity of a parent with dementia, several factors are taken into account, including medical records, witness evidence, the reasoning behind its terms, how complicated were the terms of the Will and the circumstances surrounding how the Will was signed.

Families concerned about the impact of dementia on a Will’s validity may consider the following measures:

1. Obtain a Medical Assessment

A comprehensive evaluation conducted by a qualified mental health professional is vital. Whether performed during your parent’s lifetime or retrospectively through documented evidence, a detailed capacity report can provide crucial evidence of a parent’s ability (or inability) to make informed decisions regarding their estate.

2. Choose Reliable Witnesses

Having reliable and credible witnesses present when a Will is signed can help to show that it is valid. These witnesses should be prepared to confirm your parent’s mental state and confirm that they appeared to understand the nature and effect of their Will. Ideally, witnesses should be trusted individuals who have no interest in the estate to avoid any allegations of undue influence or potential conflicts of interest (gifts in Wills to witnesses will fail).

3. Document the Process

Clear documentation created during the Will-making process can provide critical evidence of your parent’s testamentary capacity or their lack of capacity. This may include video recordings outlining their wishes, as well as written notes explaining the reasons behind specific gifts and inheritances. Such evidence is crucial should the Will’s validity later be legally contested.

4. Seek Legal Advice

Consulting with an experienced Wills & Probate solicitor is vital when making a Will whilst suffering from dementia. An experienced solicitor can provide guidance on the legal requirements to meet to confirm testamentary capacity and help ensure that the Will is executed in a way that minimizes the risk of future disputes. An experienced solicitor may also suggest additional safeguards, such as a capacity assessment by a Doctor or Geriatric Psychiatrist, to further avoid challenges in the future.

Challenging a Will on Grounds of Lack of Testamentary Capacity

If your parent’s Will is challenged on the grounds that your parent lacked testamentary capacity due to dementia, the burden of proof rests with the person challenging the Will. They must provide enough evidence that your parent did not meet the legal requirements for testamentary capacity at the time the Will was executed. This often involves analysing medical records, witness statements and other documents to prove or disprove your parent’s mental health.

The court will carefully consider the evidence presented and make a determination based on the balance of probabilities. If the court finds that your parent lacked testamentary capacity, the Will would be declared invalid, and the estate would be distributed according to the terms of a previous valid Will or, in the absence of such a Will, according to the laws of intestacy.

Conclusion

Determining whether dementia renders a Will invalid is naturally complicated and highly dependent on the circumstances of each individual case. Although a diagnosis of dementia does not automatically invalidate a Will, it raises legitimate concerns and may increase the likelihood of future disputes. Investigating through a medical evaluation, discussions with witnesses, obtaining notes related to the Will and seeking legal advice, families can put their mind at rest and ensure that their loved one's true wishes are respected.

If you have concerns about the validity of a will due to dementia or need assistance with estate planning, Gosschalks has the expertise needed to help. Contact us today to schedule a consultation with one of our experienced solicitors.

About the author: Ben Marsden