Can a Person with Alzheimer's or Dementia Still Make a Valid Will?
When someone is diagnosed with Alzheimer’s disease or dementia, a key concern often arises: can they still legally create a will? This question revolves around the concept of legal capacity, which is essential in determining whether a will can be upheld or contested. Without the necessary legal capacity, a will might be invalidated, potentially leading to the distribution of the estate under intestacy laws, rather than according to the individual's wishes. It's important for individuals affected by these conditions and their families to understand how legal capacity is assessed in this context.
What Is Legal Capacity?
Legal capacity refers to a person’s ability to understand the nature and consequences of their decisions, particularly when making significant legal choices such as creating a will, and it is presumed that a person has testamentary capacity unless proven otherwise. In the context of wills, the term legal capacity is often referred to as "testamentary capacity."
To be considered as having testamentary capacity, an individual must:
Understand the purpose and effect of a will: They need to grasp what a will accomplishes and its legal implications.
Know the extent of their assets: They should be aware of what they own and what they can legally distribute through their will.
Acknowledge those who might have a claim to their estate: This includes recognising potential beneficiaries, such as family members or dependents.
Be free from any mental condition that impairs rational decision-making: This involves not being influenced by delusions or mental illnesses that could affect their decisions regarding the will.
Impact of Alzheimer’s and Dementia on Legal Capacity
Alzheimer’s and other forms of dementia are progressive conditions that impair cognitive functions, memory, and judgment. However, receiving such a diagnosis doesn’t automatically mean a person lacks the capacity to make a will. The critical factor is whether the individual had the necessary mental capacity at the time the will was made.
Capacity can vary, especially in the early stages of Alzheimer’s or dementia. Individuals may experience lucid intervals where they fully comprehend their actions. If a will is created during such a period of clarity, it may be valid, even if the individual's mental state declines afterward.
Steps to Prove Capacity
When someone with Alzheimer’s or dementia wishes to make a will, certain precautions can help ensure its validity and reduce the risk of it being contested. These steps include:
Obtaining a medical assessment: A healthcare professional, such as a neurologist or psychiatrist, can evaluate the person's cognitive state and provide an opinion on their capacity at the time the will is made.
Engaging a solicitor: Having a lawyer present during the drafting of the will is advisable. The solicitor can document the process, ask pertinent questions, and confirm that the individual understands the nature and effect of the will.
Documenting the process: Keeping detailed records or even video evidence of the will-making process can serve as proof that the individual had the necessary capacity.
Contesting a Will
A will made by someone with Alzheimer’s or dementia can be challenged on the grounds of lack of capacity. If contested, the court will carefully review all relevant evidence, including medical records, witness testimonies, and any documentation from the time the will was made.
When tackling such an issue, the court's focus will be on whether the person had the mental ability to understand the key aspects of making a will at the time it was executed. If it’s determined that they lacked capacity, the will could be declared invalid, potentially leading to unintended consequences in the distribution of the estate.
It is possible for individuals with Alzheimer’s or dementia to make a valid will, provided they have testamentary capacity at the time of its creation. It is crucial to take appropriate measures to ensure that the will reflects the individual's true intentions and that their capacity can be demonstrated if challenged. Engaging both legal and medical professionals early in the process can help safeguard the will's validity and ensure that the person's final wishes are respected.
Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.