I spoke to a brother recently who wanted to know if he could help his father who has dementia write an online will with us. It’s a great question and the answer is, it depends.
One of the conditions for creating a valid will is “mental capacity”.
There are a number of things that can impair your mental capacity and cause you to lose mental capacity. Examples could be:
- A stroke
- A brain injury
- A mental health condition
Drafting a will with a legal professional or an online platform like True Wills is the same i.e. the testator (person creating the will) must be able to demonstrate that they:
- understand the nature of their act (of making a will) and its effects; and
- understand the extent of the property in their estate.
So when you visit a solicitor with your father or mother or other relative and request a will is written, they will ensure that the testator understands what they own and what will happen to their property and possessions when they die.
The question I asked the brother was, what stage of dementia his father had reached. In the case of Ewing v Bennett it was established that a testator who executed her will in the early stages of dementia (periodic forgetfulness being the main problem) was valid when written because she had the capacity to make it.
In this case, if the dementia was at an early stage then there is no problem in helping them write the will. When helping someone write a will you must ensure that they understand what they are doing, its effect and how it relates to what they own. Remember that a will isn’t valid until it has been signed by two witnesses who may be asked how the testator was when he or she signed the will. Witnesses won’t be asked if the testator knew what was written in the will as the witnesses are usually not privy to what is written in it.
We can finish with two presumptions:
- There is a presumption that the testator had testamentary capacity – the will is therefore submitted for probate unless anyone who is challenging the will can produce sufficient evidence to rebut this presumption.
- Mental Status is presumed to continue – if the testator suffers from mental illness before they make a will, then it is presumed that they will lack mental capacity when they actually give the instructions.