Wills, LPAs and dementia: the challenges facing clients

In practice, this could mean someone with dementia could have testamentary capacity when giving instructions but lack testamentary capacity when they execute the will. That does not make the will invalid. However, it is worth noting that some solicitors will want to be satisfied the person making the will has capacity at the time of execution too if being done before them. 

Unsurprisingly, there have been judicial decisions involving challenges in relation to wills made by individuals who were suffering from dementia.

Helpfully there is a level of protection built into the LPA itself.

The cases often provide lawyers with welcome clarity on how judges approach the issue. For example, an individual suffering moderately severe dementia was found to have testamentary capacity, even though he could not recall the terms of his previous will.

Once the individual was reminded of the previous will, he had some understanding of the information in it. He was also able to describe the new will and understood it (Hughes v Pritchard [2022]).

Whereas a 97-year-old dementia patient suffering paranoid delusions lacked testamentary capacity and showed no improvement when he executed the will. The will was invalid and an earlier will was pronounced (Boast v Ballardi [2022]). 

Note that these types of cases tend to be fact-specific; a good solicitor will always consider a person’s individual circumstances and needs when advising if they have capacity to make a will. 

What if it is too late?

Sadly, it can in some instances be too late for dementia sufferers to make a valid will. If they have a prior valid will in place, this will come into effect on death – though bear in mind it could still be subject to a claim from an aggrieved relative such as a child or other dependent. 

Where there is no will the individual’s assets will automatically pass to their next of kin under the statutory rules of intestacy. 

However, if the application of intestacy rules were to have a prejudicial impact on family members, it may be possible for a loved one to ask the Court of Protection to approve a ‘statutory will’ on the individual’s behalf. The purpose of a statutory will is to reflect the wishes of the individual as if they had capacity to make their own will. 

LPA

An LPA is a document that a person can use to legally appoint at least one attorney to make decisions on their behalf if they lose capacity, giving much needed peace of mind. 

It is quite possible for someone with a dementia diagnosis to make an LPA before it becomes too late, they just need to have the required mental capacity to do so.