Can Dementia Patients Make Wills in the UK?

A dementia diagnosis can make families fear that it is already too late to put a will in place. The answer to the question, can dementia patients make wills, is sometimes yes. What matters is not the diagnosis itself, but whether the person understands the decision they are making at the time they make their will.

This can be a sensitive subject. A person may have good and difficult days, and relatives may understandably worry about making the wrong move or causing upset. Acting carefully and without delay can protect the person's wishes and reduce the risk of disagreement later.

Can dementia patients make wills if they have capacity?

In England and Wales, a person must have what is known as testamentary capacity to make a valid will. Dementia does not automatically mean that someone lacks this capacity. Many people in the early stages, and some people with more advanced symptoms at particular times, can still understand and make decisions about their estate.

The key question is whether they have capacity when instructions are given and when the will is signed. Capacity can vary. Someone may be clearer in the morning than late in the day, for example, or may have periods of lucidity between episodes of confusion.

For a will to be valid, the person should broadly be able to understand that they are making a will and what it does. They should have a reasonable understanding of the property and assets they own, and appreciate the people who may have a claim on their estate, such as a spouse, partner, children or other dependants. They must also be able to make their choices freely, without a disorder of the mind influencing the gifts they make.

This is a different test from simply remembering every detail of their finances or being able to manage day-to-day paperwork independently. A person may need help with banking, appointments or medication and still be capable of making a will.

Why a diagnosis is not the whole story

Dementia is an umbrella term covering different conditions and symptoms. Its effect on understanding, memory, reasoning and communication differs from person to person. A label in medical notes is therefore not, by itself, proof that a will is invalid.

Equally, families should not assume capacity without taking proper care. If there are signs of confusion, memory loss, hallucinations, unusual suspicion, difficulty understanding simple explanations or sudden changes in long-held wishes, the will-making process needs to be handled with particular caution.

The practical balance is important. Waiting for absolute certainty can mean waiting until capacity has been lost. Rushing or treating the process as a formality can leave a will open to challenge. A careful assessment and a clear record of the person's wishes are usually the best protection.

How capacity should be considered when making a will

A good will-writing appointment is more than completing a form. The person making the will should be spoken to directly, ideally alone for at least part of the meeting. This helps establish that the instructions come from them and that nobody is pressuring them.

The adviser should use clear, straightforward language and allow enough time for answers. They may ask the person to explain, in their own words, what a will does, who they would expect to inherit and why they have chosen particular beneficiaries. The purpose is not to test or embarrass them. It is to make sure they understand their decisions and are making them voluntarily.

Where there is any real doubt, medical evidence should be considered. A GP, consultant or other suitably qualified clinician may be asked to assess and record whether the person understands the nature and effect of making a will. This is often referred to as following the Golden Rule: where a person is elderly or seriously ill, the will should be witnessed or approved by a medical practitioner who has assessed capacity.

A medical professional may not always be available at short notice, and their involvement does not guarantee that no dispute will arise. However, an independent assessment made close to the signing date can be valuable evidence if questions are raised after death.

Timing and signing matter

If a person has dementia but is thought to have capacity, it is usually sensible to arrange the will as soon as possible. Choose a time of day when they are normally at their clearest, and avoid a period of illness, exhaustion, medication changes or hospital treatment where possible.

The final document must still be signed correctly. In England and Wales, the person making the will must sign it, 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 person's presence.

Witnesses should be independent. A beneficiary, or the husband, wife or civil partner of a beneficiary, should not act as a witness because the gift to that person may fail. Where capacity could later be questioned, independent witnesses who can describe the signing process may be especially helpful.

It is also wise to keep a detailed attendance note. This may record the questions asked, the person's responses, who was present, why the instructions were considered rational and whether medical evidence was obtained. These records can be crucial if an unhappy relative later alleges that the person did not understand the will or was unduly influenced.

What if the person can no longer make a will?

If a person has lost testamentary capacity, neither an attorney under a Lasting Power of Attorney nor a close family member can simply make or alter a will for them. An attorney can manage certain financial affairs, but cannot make a standard will on the person's behalf.

In some circumstances, an application can be made to the Court of Protection for a statutory will. This is a will authorised by the court for someone who lacks capacity. The court considers what is in that person's best interests, taking account of their past wishes, family relationships, assets, care needs and any existing will.

A statutory will can be appropriate where there is no will, where an old will no longer reflects the person's circumstances, or where a major change has occurred, such as the death of a beneficiary. It is a formal process and is not a quick substitute for making a will while capacity remains.

Do existing wills remain valid after a dementia diagnosis?

Usually, yes. A diagnosis of dementia does not cancel a will that was validly made when the person had capacity. The existing will remains in place unless it is replaced or revoked in a legally valid way.

This is why it is worth locating the current will and checking that it still reflects the person's wishes. If a new will cannot be made, having a clear understanding of the existing arrangements can prevent confusion. It may also be the right time to check whether a Lasting Power of Attorney is already in place, as this can make financial and health decisions easier to manage if capacity is lost later.

Steps families can take now

Start with a calm conversation rather than assumptions. Ask the person whether they have a will, where it is stored and whether it still reflects what they want. If they wish to change it, arrange a professional appointment promptly and make sure they have the space to give their own instructions.

Avoid drafting a will yourselves, directing the outcome or discussing potential inheritances in front of the person in a way that could be seen as pressure. Even well-intentioned involvement can create doubts later, particularly where one family member receives more than another.

For families across Essex, Suffolk and the wider East of England, a home visit can be helpful where travelling is difficult or unfamiliar surroundings cause distress. Langham Wills can discuss the person's circumstances sensitively, explain the available options in plain English and take the appropriate care where capacity may be in question.

A will is one of the clearest ways for a person to have their voice heard when they are no longer here. Where dementia is involved, thoughtful action now can give that voice the care and respect it deserves.