Figures published by the Alzheimer’s Society last year reported that more than 800,000 people in the UK have some form of the condition and it is predicted that these numbers will keep rising.
With this in mind, it becomes even more important to ensure that not only are we making Wills but that we keep them up to date.
The law requires that anyone who makes a Will must have the necessary mental capacity to do so. This is known as testamentary capacity, the test for which has long since been established in the case of Banks v Goodfellow (1870).
The test states that anyone who makes a Will:
- Must understand he is making a Will;
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Must understand that the effect of the Will is to dispose of his assets after his death;
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Must understand (in a broad sense) what assets are disposed by the Will;
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Must be able to review the beneficiaries who may have a claim on his estate;
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Must not be suffering from a mental illness which affects his ability to decide the destination of the estate;
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Must not suffer from a delusional mental illness which has the effect that the disposal would not have been made but for the delusion.
Whilst a diagnosis of Alzheimer’s will not in itself mean that a person lacks testamentary capacity, it clearly raises difficulties with satisfying the test set out in Banks v Goodfellow (1870) and requires the need for anyone suffering from Alzheimer’s to err on the side of caution when making or amending a Will.
If a loved one has been diagnosed with Alzheimer’s and wishes to make a Will or amend an existing Will it is important to ensure that legal advice is sought. It is also vital to obtain a report from a medical expert to confirm the existence of testamentary capacity. When it comes to prove the Will, the absence of this evidence will often give rise to challenges regarding the Will’s validity.
If following a medical review, the advice is that your loved one does not have capacity to make a Will then all is not lost. The Court of Protection has the power to order the creation of a statutory Will (or a change to an existing Will) on behalf of someone who does not have the mental capacity to do this themselves.
Certain categories of people can apply, including attorneys appointed under a registered lasting power of attorney or enduring power of attorney, a person’s deputy appointed by the court, someone who might benefit if the person were to die without a Will and someone that the person would be expected to include in their Will. Alternatively, the Court of Protection can grant permission to apply if you do not fall within the specified categories of people who can apply.
Understandably, having to make an application for a statutory Will is far from ideal and having to defend a claim challenging the validity of a Will following the loss of a loved one, is even less so. The advice is simple: ensure you make a Will and keep it up to date.
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