Q&A - My dementia-diagnosed father has left everything to a former partner, can I change his Will?

01/08/2016

Q: My father recently developed dementia and moved into a care home. When clearing out his house I discovered a Will made fifteen years ago, wherein he left his entire estate to his former partner whom he has not seen since 2007. What can I do?

A: Firstly, check again through your father’s paperwork to look for a more recent Will, revoking the earlier one, and check with local solicitors to see if they hold a Will for him.

If you cannot locate a more recent Will your father may be able to change his Will - if he has the necessary capacity to do so. The test for having capacity to make a Will is that your father must: (a) understand the nature of making a Will; (b) understand the extent of his estate; (c) be aware of the persons for whom he would usually be expected to provide.

If your father satisfies the above tests and wishes to make a new Will he is free to do so. However, if he is not capable of making a new Will, his existing Will continues to take effect. If you feel that your father’s wishes would no longer be covered by the existing Will, you can make an application to the Court of Protection to prepare a Statutory Will on his behalf. This would involve the court examining your father’s best interests and deciding who he would choose to leave his estate to if he was capable of deciding for himself.

If your father dies before you are able to make an application for a Statutory Will, you may be able to make a claim to receive some of his estate under the Inheritance Provision for Family and Dependants Act 1975. Consulting a solicitor immediately is key as there are very strict time limits for making a claim.

Victoria Wilson

Victoria Wilson

Partner

A Partner and Part of our Probate, Wills, Trusts and Tax team in Oswestry