One of the most difficult situations a family can face is realising that a loved one has been diagnosed with dementia, or is showing early signs of cognitive decline, and has not yet made a will. In other cases, an older will exists, but family circumstances have changed and everyone is unsure whether it can safely be updated.
The important point is this: an early dementia diagnosis does not automatically prevent someone from making a valid will. Capacity is decision-specific. Many people in the early stages of dementia still have the legal capacity to make or update a will, provided they understand the decision they are making at the relevant time.
The key is to act early, take proper advice, and put safeguards in place before capacity becomes disputed.
Why timing matters so much
Dementia is often progressive, but capacity can fluctuate. A person may be confused at one time of day and much clearer at another. That makes timing and evidence very important.
A will can be challenged after death if someone argues that the testator lacked capacity or was pressured into making it. The question is not simply whether the person had a diagnosis. The question is whether they understood what they were doing when they gave instructions and signed the will.
Waiting until the situation has deteriorated is the most common mistake. By then, the options may be narrower and the risk of dispute much higher.
What testamentary capacity means
The legal test for making a will in England and Wales comes from Banks v Goodfellow. A person making a will must understand:
- What a will is and what it does
- The broad extent of the property they are leaving
- The people who might reasonably expect to benefit, such as a spouse, civil partner, children or dependants
- That no disorder of the mind is affecting their decisions in a way that distorts their wishes
A person may need support with daily life or finances and still have testamentary capacity. The test is specific to making a will. Our blog on testamentary capacity explained sets out the legal framework in more detail.
How early dementia affects capacity
A dementia diagnosis is not enough, by itself, to invalidate a will. What matters is the person’s actual understanding at the time.
Someone in the early stages of Alzheimer’s disease may still be able to explain their family, understand their assets, and make clear decisions about who should inherit. Someone with more advanced symptoms may not.
This is why careful preparation is so important. A will made with clear solicitor notes, proper questioning, and medical support where needed is much harder to challenge than one made informally with little evidence. Our blog on making a will after an Alzheimer’s diagnosis — capacity, timing, and safeguards explores this in more detail.
The role of the solicitor
Where capacity may later be questioned, the solicitor’s role goes beyond drafting. A careful solicitor should:
- Meet the person making the will privately
- Take instructions directly from them
- Ask questions about their family, assets and wishes
- Keep detailed attendance notes
- Consider whether a medical opinion is needed
- Ensure the will is signed and witnessed correctly
For a will to be valid, it must comply with the Wills Act 1837. The testator must sign, or acknowledge their signature, in the presence of two witnesses who are both present at the same time. The witnesses must then sign in the testator’s presence.
Our blog on evidence of capacity on the day explains what this evidence should show.
When to get a medical assessment
If there is a dementia diagnosis or a realistic risk of challenge, a medical capacity assessment is strongly advisable. This is often called the “golden rule” in older or seriously ill testators, although it is best practice rather than a strict legal requirement.
The doctor or specialist should ideally assess the person close to the signing date and address the Banks v Goodfellow test directly. A Mental Capacity Act 2005-style assessment may also help, but it should not replace the specific testamentary capacity question.
Protecting against undue influence
Capacity is not the only risk. A will can also be challenged if someone claims the testator was pressured.
The safest approach is for the solicitor to see the testator alone, record that the instructions came directly from them, and ask whether anyone has influenced their decision. This is especially important where one family member has arranged the appointment or is heavily involved in the person’s care.
Our blog on undue influence risks in vulnerable testators explains how these disputes arise.
Lasting Powers of Attorney
A will deals with what happens after death. A Lasting Power of Attorney deals with decisions during life if capacity is lost.
There are two types: property and financial affairs, and health and welfare. If early dementia is a concern, LPAs should be considered at the same time as the will. The person must have capacity when making the LPA. Registration with the Office of the Public Guardian currently takes around 8 to 10 weeks if there are no mistakes.
If capacity is lost before an LPA is properly made, an application to the Court of Protection may be needed instead. Our dementia wills solicitors in London can advise on both wills and LPAs.
Executors, trustees and family conflict
Where dementia or family tension is involved, choosing executors carefully matters. A professional co-executor can provide neutrality and reduce the scope for disputes, especially in blended families or where a trust is included. Our blog on choosing executors and trustees when a testator has Alzheimer’s explains the options.
What happens if it is left too late
If someone lacks testamentary capacity, they cannot make a standard will, and an attorney under an LPA cannot make one for them.
If there is no valid will, the intestacy rules decide who inherits. These rules may not reflect the person’s wishes and can create difficult outcomes, especially for unmarried partners, blended families and estranged relatives.
In some cases, the Court of Protection can approve a statutory will for someone who lacks capacity. This is a specialist, more expensive process and should be treated as a last resort.
If an existing will may be vulnerable, our make a will solicitors in London can review the circumstances and advise.
After death
If a will is challenged after death, the solicitor’s file, medical evidence and witness details become crucial. Our blog on steps to protect wills when capacity is in doubt explains how good preparation helps defend a will.
If a dispute escalates, our civil dispute solicitors can advise. If the estate includes disputed property, our property dispute solicitors in London can help. Where probate support is needed, our grant of probate solicitors in London provide practical guidance.
Frequently asked questions
Can someone with dementia make a valid will?
Yes, if they meet the testamentary capacity test at the time. The diagnosis alone is not decisive.
Does a GP need to be involved?
Not always, but where capacity may be challenged, a written medical opinion close to the signing date is sensible.
Can a family member attend the appointment?
It is better for the testator to be seen alone. A family member’s presence can later be used to support an undue influence allegation.
What if the person refuses to make a will?
If they have capacity, they are entitled to refuse. Capacity is not the same as agreement with what others think is best.
Is it too late if capacity has already been lost?
For a standard will, yes. A statutory will application to the Court of Protection may be possible in suitable cases. Solicitors in London with Court of Protection experience can advise.
Do not wait until capacity is disputed
If you or a loved one is facing an early dementia diagnosis, estate planning should be dealt with as soon as possible. A will made carefully while capacity is clear is far stronger than one prepared in a rush after concerns have already escalated.
At Atalaw Solicitors, our will writing lawyers in London advise families dealing with dementia, cognitive decline and capacity concerns. We work with care, patience and practical judgement.
Contact us today for a confidential conversation. Acting early can make all the difference.