With close to fifty million people living with dementia worldwide and nearly ten million new cases each year, World Alzheimer’s’ Day on 21 September is an opportunity for organisations and individuals to raise awareness of Alzheimer’s disease and to do all that we can to support those living with the disease.
Dementia refers to a variety of illnesses and conditions which result in an impairment of brain function and a decline in intellectual functioning. If you want to make decisions about your estate and what happens to your assets when you die, can you still make a will if you have been diagnosed with dementia? There is no straightforward answer to this question so we must first consider what is required to make a will.
Making a will and defining ‘capacity’
To make a valid will in Scotland, the individual (the ‘testator’) needs to (1) have ‘testamentary capacity’ to make the will and (2) puts their wishes and instructions in writing and sign the will. To have testamentary capacity the testator must be capable of:
- Understanding what a will is and the nature and effect that it will have
- Understanding the extent of what they will be leaving in their will
- Understanding and appreciating the obligations which someone in their position would usually have towards their family and other relevant individuals
The tests require the testator to have a certain level of understanding which varies according to the complexity of the will itself, the extent of the testator’s assets and the claims upon the testator. In Scotland, capacity is considered by defining what ‘incapacity’ is. The Adults with Incapacity (Scotland) Act 2000 provides a definition of ‘incapacity’ which includes being incapable of:
- acting; or
- making decisions; or
- communicating decisions; or
- understanding decisions; or
- retaining the memory of decisions,
by reason of mental disorder or of an inability to communicate because of a physical disability. However, a person shall not fall within this definition if the only reason they cannot communicate is due to a lack of an aid to communicate.
The difficulty is that someone who struggles to retain the memory of their decisions may still have sufficient capacity to make and execute a will. Alternatively, a person who does not have capacity to make a will may still have the capacity to carry out other acts (e.g. buying groceries). Incapacity can take time to develop, particularly with dementia. In a particular case although the testator suffered from mental illness which caused delusions, it was held by the court that these delusions did not influence his decision regarding who should benefit from his estate.
There may be trouble ahead
When there is uncertainty about the validity of a will and whether the testator had capacity when putting a will in place, this can lead to the will being contested and difficulties in administering the estate following the testator’s death. We have previously blogged on challenging or contesting a will, and capacity is only one issue that can cause a will to be contested. To avoid any future complications, we recommend that you seek medical advice to clarify the position if there are any doubts or concerns about capacity.
The best laid plans…
In any situation like this, our advice remains the same for everyone – plan ahead and plan early. With an ageing population and an increase in life expectancy, we encourage everyone to put a will and power of attorney in place in good time. This will ensure that your wishes are respected following the time of your death or if you become incapable of look after yourself and your affairs.
If you would like to discuss any of the issues raised, please get in touch with your usual contact in Brodies’ Personal & Family department, or telephone 01224 392 242 to speak with a member of the team.
On September 20, 2019