Q: My parents separated a few years ago but have never bothered divorcing. Now my mother has been diagnosed with dementia and I have discovered that she didn’t update her Will after my father left her. Is it too late for her to do it now she has received her diagnosis?
A: Whether or not your mother can make a new Will depends on whether she still has ‘testamentary capacity’. To have testamentary capacity she must first be capable of understanding what a Will is and the nature and effect that its contents will have. She must also understand the extent of what she will be leaving in her Will and the obligations she would normally have towards her family and other individuals who are beneficiaries.
Even though your mother has been diagnosed with dementia and perhaps struggles to retain information, it may still be the case that she is capable of making a decision and may therefore still have capacity to make a Will, as incapacity usually takes time to develop. This is particularly so with dementia.
If your mother’s dementia has progressed to the point of her losing capacity, then under The Mental Capacity Act 2005 you could apply to the Court of Protection to have a ‘Statutory Will’ prepared. In making a Statutory Will on your mother’s behalf the Court must consider her past and present wishes as well as her feelings, beliefs and values and act in her best interests. The Court is most likely to execute a Statutory Will if the testator has never executed a Will, or if there has been a significant change in the testator’s circumstances.
Making an application for a Statutory Will can be both complex and time-consuming and will require obtaining medical evidence of the person’s mental capacity. It is therefore advisable to seek advice from an experienced Court of Protection solicitor.
This question has been answered by Ulia Choudhry, a Solicitor with GHP Legal. If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients. Where possible, we ask that you communicate with us by phone or email. If you have a new enquiry or for an appointment visit www.ghplegal.com or contact one of our offices: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194