Capacity to make a Will

Capacity is a vital part of making a Will. If an individual lacks testamentary capacity, they cannot make a Will. Even if someone has previously made a Will, they cannot make any changes if they do not have mental capacity. This provides a level of protection to those who are no longer sound of mind, helping to prevent others from taking advantage.

In order to have testamentary capacity, an individual must understand:

• what making a Will is and the effect that it will have;
• the extent of their Estate; and
• who might expect to be named in their will, and why they are choosing to either leave or not leave things to them.

Often, a person fails to meet this threshold when they are diagnosed with dementia. Being diagnosed with any form of dementia, such as Alzheimer’s, does not automatically revoke a person’s testamentary capacity but often as the disease develops the decline in memory becomes too significant that it is no longer possible to argue that there is full mental capacity.

When creating a Will with a dementia diagnosis, it is advisable to get medical evidence that clearly states the individual still has mental capacity. This means that if anyone questions their Will in the future, there is evidence that they were able to make one at the time.

If an individual no longer has the capacity to make a Will, an alternative option is applying to the Court of Protection. They can give permission to make a Will on behalf of the person who has lost capacity. This type of Will is called a Statutory Will.

Statutory Wills deal with the same considerations as standard Wills but are made following an application to the Court of Protection.

When deciding whether to allow an application to succeed, the Court has to decide whether creating a Statutory Will is in the vulnerable person’s best interests. They will take into account any past or present wishes of the individual as well as potentially the views of those who care for the vulnerable person, their family and friends, any Deputy or Attorney who may be acting on their behalf. Overall, the Court will only create a Statutory Will if it is in the vulnerable person’s best interest.

Making a Statutory Will is a lengthy and expensive process and consequently, where possible, it’s arguably better to put your affairs in order sooner rather than later.

If either you or a loved one is yet to make a Will or if you have any questions regarding capacity, please contact our dedicated team on 01484 821 500 or email us at willsandprobate@ramsdens.co.uk