Losing a loved one is always difficult. When you also have doubts about whether their Will truly reflects their wishes, the situation can feel even more distressing. If the person who died had dementia or was showing signs of cognitive decline in the months or years before they passed away, you may be wondering whether they had the legal capacity to make or change their Will at all.
These are very real concerns, and ones our team hears regularly. Families are often left unsure of where to turn when they suspect that a loved one’s Will doesn’t tell the whole story. The law does provide a route to challenge a Will in these circumstances, and understanding your options is an important first step.
If you’re worried about the validity of a Will, please get in touch with our private wealth disputes solicitors today. We’re here to help.
Can dementia invalidate a Will?
Dementia alone does not automatically invalidate a Will. This is an important distinction to understand. The key legal question is whether the person making the Will, known as the testator, had sufficient mental capacity at the precise time the Will was signed.
Dementia is a progressive condition, and its effects on a person’s mental function can vary significantly from day to day. Someone who has been diagnosed with dementia may still have had what the law calls testamentary capacity at the time they made their Will. Equally, someone who had not yet received a formal diagnosis may have already lacked the necessary capacity.
For this reason, a diagnosis of dementia on its own doesn’t settle the matter. Each case must be assessed on its own facts, and gathering the right evidence is essential.
What is testamentary capacity?
Testamentary capacity is the legal term for a person’s ability to make a valid Will. To have testamentary capacity, the testator must satisfy a four-part test established in the case of Banks v Goodfellow [1870]. Under this test, the testator must:
- Understand the nature of making a Will and its effects.
- Understand the extent of the property that they own and which, by their Will, they’re giving away.
- Understand the claims of those who might reasonably expect to benefit from their estate.
- Not be suffering from any disorder of the mind that distorts their decision-making in a way that affects the Will.
All four elements must be present at the time the Will is signed. If any one of them was absent due to the effects of dementia, there may be valid grounds for contesting the Will on the basis of lack of testamentary capacity.
Our mental capacity assessment page provides further detail on how capacity is assessed in a legal context.
What is the golden rule for Wills and dementia?
When a solicitor drafts a Will for someone whose mental capacity may be in doubt, there is a professional guideline known as “the golden rule.” This states that the solicitor should obtain a medical opinion on the testator’s capacity, ideally from their GP or another suitably qualified medical professional, before the Will is signed.
Failure to follow the golden rule doesn’t automatically make a Will invalid. However, it can significantly strengthen a challenge, particularly where other evidence also points to a lack of capacity. If no medical opinion was sought at the time, it raises questions about whether proper care was taken to ensure the testator truly understood what they were agreeing to.
Where a solicitor has followed the golden rule and a favourable medical opinion was recorded, that evidence will need to be carefully weighed against any contrary evidence you’re relying on.
What evidence do I need to challenge a Will on grounds of dementia?
Building a successful challenge requires clear and credible evidence. The types of evidence most commonly relied upon include:
- Medical records and GP notes covering the period leading up to the Will being made.
- Records from care homes, community carers, or other support services.
- Previous Wills, which may help to show a change in the testator’s intentions over time.
- Witness statements from family members, friends, or carers who knew the testator during the relevant period.
- The solicitor’s file from when the Will was drafted, including any notes about the testator’s conduct or demeanour during their meeting.
- An expert medical opinion, typically from a specialist in dementia or psychiatry, reviewing the available records and providing an assessment of the testator’s likely capacity at the relevant time.
Our team will work with you to identify the evidence most relevant to your situation and help you build a clear and well-supported picture of the circumstances.
What is the process for challenging a Will due to lack of capacity?
If you want to contest a Will on grounds of lack of capacity, the process generally involves the following steps:
- Entering a caveat: A caveat is a formal notice lodged with the Probate Registry that prevents a Grant of Probate (the legal authority to administer an estate) from being issued while the dispute is ongoing. This is usually one of the first practical steps to take.
- Gathering evidence: Your solicitor will help you collect the relevant medical, personal, and legal records.
- Obtaining expert medical opinion: A specialist will review the evidence and provide a formal opinion on whether the testator was likely to have had testamentary capacity at the time the Will was made.
- Attempting alternative dispute resolution (ADR): Many Will disputes are resolved through negotiation or mediation, where an independent third party helps the parties reach a settlement, without the need for court proceedings.
- Court proceedings: If agreement can’t be reached, the matter may be referred to court for a judge to determine.
For more detail on the contentious probate process, please visit our contentious probate page.
Are there time limits for contesting a Will?
There’s no single fixed statutory time limit for challenging a Will on the grounds of lack of testamentary capacity in England and Wales. However, delay can seriously undermine your position. Witnesses’ memories fade, records become harder to obtain, and key evidence can be lost over time.
As a general principle, you should seek legal advice as soon as possible after concerns about a Will arise. If your challenge also involves a financial provision claim under the Inheritance (Provision for Family and Dependants) Act 1975, a six-month time limit from the date of the Grant of Probate applies, making prompt action even more important.
Why choose Roythornes?
Our private wealth disputes team has extensive experience supporting clients through contentious and often emotionally difficult Will disputes. We take a considered and sensitive approach, taking the time to understand the full picture of your circumstances before advising you on the most appropriate way forward.
Our team includes specialists recognised by both Chambers and Partners and The Legal 500. Gavin Faber is ranked Band 1 by Chambers and Partners, and Jak Ward is recognised as a Next Generation Partner by The Legal 500 for contentious trusts and probate work in the East Midlands.
Gina Khera is a member of the Association of Contentious Trust and Probate Specialists (ACTAPS) and the Contentious Trusts Association (ConTrA), the Agricultural Law Association (ALA), the Court of Protection Practitioners Association (CoPPA) and the Society of Trust and Estates Practitioners (STEP).
The firm holds Lexcel accreditation from the Law Society and is a member of the Society of Trust and Estate Practitioners (STEP).
Whether you’re in the early stages of considering a challenge or ready to take action, we’ll work with you to protect your interests and pursue the right outcome on your behalf. You may also find our Wills and probate solicitors page useful if you have broader questions about the probate process.
Get in touch with our Will dispute solicitors today
If you’re concerned that a loved one’s Will may not reflect their true wishes due to dementia or a lack of testamentary capacity, please don’t hesitate to get in touch. You can give us a call or complete our enquiry form below. We have offices in Abingdon, Alconbury, Birmingham, Langham, Nottingham, and Spalding.