14th August 2017
With debilitating conditions such as dementia and Alzheimer’s on the increase, the question of whether or not a person has mental capacity to make a will frequently arises. Andrew Willott, wills and probate lawyer at Myers & Co Solicitors in Stoke on Trent, Staffordshire explains the rules.
Mental capacity, in the context of making a will, broadly relates to whether a person is capable of:
If they cannot do these things, then they may not have sufficient mental capacity to make a will. However, determining this is not always straightforward. Mental capacity, particularly in the earlier stages of a condition such as dementia can fluctuate from day-to-day and the extent of a person’s understanding may not always be clear. It is possible for a person to lack mental capacity to manage their financial affairs, but to have mental capacity to make a will, as the tests that are applied are different.
Where there is uncertainty over a person’s mental capacity or there is any possibility that a question mark might arise over this after their death, it is advisable to obtain a medical certificate of capacity. A GP should be able to provide this or, if in doubt, they will refer the person to a specialist who can do so. A certificate of mental capacity should be sufficient to deal with any challenges to a will on the grounds of lack of mental capacity after a person’s death.
If a person has already lost mental capacity, an application to the Court of Protection may be necessary for a statutory will to be prepared on their behalf. This is a will made by the court, in the best interests of your loved one and taking account of:
The Court of Protection is most likely to approve a statutory will if the person concerned has never made a will before or if there has been a significant change in their circumstances since their last will was prepared.
If you suspect your loved one may be beginning to lose mental capacity, or they are in the early stages of an illness such as dementia, it is important not to delay seeing a lawyer to start the process of making a will. Consideration should also be given to creating a lasting power of attorney giving a friend or relative power to look after your loved one’s affairs when they no longer have mental capacity to do so themselves.
For a confidential discussion about wills and mental capacity issues, please contact Andrew Willott on 01782 525006 or email email@example.com.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.