Writing a will is essential for ensuring your wishes are honoured after you pass away. However, when a loved one has Alzheimer’s, the process can be more complex. Ensuring the will remains legally valid and reflects the individual’s intentions requires careful planning and consideration.
In this blog, we’ll explore how to carry out Alzheimer’s will writing, focusing on maintaining legal validity and safeguarding their wishes.
Understanding Mental Capacity and Alzheimer’s
One of the most important factors in Alzheimer’s will writing is mental capacity. For a will to be legally valid in the UK, the person creating it (the testator) must have the mental capacity to understand the nature of the will, the extent of their estate, and the consequences of their decisions.
Alzheimer’s can impact mental capacity over time, but having a diagnosis doesn’t automatically mean a person cannot create or update their will. The key is determining whether the individual has the mental capacity to understand what they are doing at the time the will is made.
Assessing Mental Capacity
In legal terms, mental capacity refers to a person’s ability to make informed decisions about their affairs. To create a will, the person must:
- Understand what a will is and its effects.
- Know the extent of their assets (even if they may not recall every detail).
- Comprehend who should benefit from their will.
- Be aware of any claims to their estate.
If these criteria are met, the person can write a will even with a diagnosis of Alzheimer’s.
Step-by-Step Guide to Alzheimer’s Will Writing
1. Seek a Medical Assessment
Before beginning the will-writing process, it’s a good idea to seek a medical assessment to confirm the individual’s mental capacity. A medical professional, such as a GP or specialist, can provide documentation confirming that the person understands the decisions they are making. This evidence can be crucial if the will is later challenged on the grounds of lack of capacity.
2. Engage a Professional Will Writer or Solicitor
When dealing with Alzheimer’s will writing, it’s especially important to work with an experienced will writer or solicitor. Professionals can help ensure that the will complies with legal requirements and that all necessary steps are followed to protect its validity.
Origin Wills, for example, offers services specifically designed to assist in will writing for individuals with complex needs, including Alzheimer’s will writing.
3. Ensure the Will Reflects the Person’s Wishes
Even if a loved one is experiencing memory loss, the will must clearly reflect their current wishes. The will writer should spend time with the individual to discuss their preferences, including how they want their assets distributed and who they trust as executors or guardians.
4. Have Independent Witnesses
To further ensure the will’s validity, independent witnesses are required when the will is signed. These witnesses confirm that the person creating the will has signed it of their own free will and understands the document. Witnesses must be over the age of 18, independent, and not beneficiaries or related to beneficiaries of the will.
5. Include a Statement of Capacity
A statement of capacity can be added to the will, affirming that the person had the mental capacity to make the will at the time of signing. This statement, supported by a medical professional’s assessment, helps protect the will from challenges after the individual’s death.
6. Review and Update the Will as Needed
Alzheimer’s is a progressive condition, and a person’s mental capacity may change over time. Therefore, it’s a good idea to review the will regularly, particularly if there are changes in circumstances such as significant changes in assets or family dynamics. Ensure that any updates are made while the individual still has the mental capacity to do so.
Protecting the Will from Challenges
A common concern when writing a will for someone with Alzheimer’s is the possibility of the will being challenged in court. Family members may contest the will on the grounds of undue influence or lack of capacity. To help prevent this, the following steps can be taken:
- Get a medical opinion: As mentioned earlier, a medical professional can confirm the individual’s capacity to create the will.
- Use a solicitor: Working with a legal professional ensures that the will is drafted and signed in line with UK law, making it harder to contest.
- Keep detailed records: Notes from meetings with the will writer, medical reports, and witness statements can provide essential evidence that the will was made freely and with understanding.
What Happens if Mental Capacity Is Lacking?
If the individual no longer has the mental capacity to make a will, they cannot legally create or update their will. In such cases, you may need to apply to the Court of Protection for a statutory will, which is a will made on behalf of someone who lacks capacity.
The Court will consider what is in the person’s best interests, taking into account any previous wishes or decisions they made before losing capacity.
Alzheimer’s will writing requires careful planning, professional support, and sensitivity. By ensuring that mental capacity is assessed, and all legal requirements are met, you can help safeguard your loved one’s wishes and protect the will from future disputes.
If you’re helping a loved one with Alzheimer’s create their will, or if you have concerns about the legal process, Origin Wills can provide expert advice and guidance. We’ll ensure the will reflects their wishes while remaining legally sound.
Contact us today:
- Phone: 020 8777 6767
- Email: reception@originwills.co.uk
Frequently Asked Questions (FAQs)
Q1: Can someone with Alzheimer’s make a legally valid will?
A1: Yes, someone with Alzheimer’s can make a legally valid will if they still have the mental capacity to understand what they are doing at the time the will is made. A medical assessment may be required to confirm this.
Q2: How can I protect a will from being challenged if the person has Alzheimer’s?
A2: You can protect the will by obtaining a medical assessment, using a professional will writer or solicitor, having independent witnesses, and including a statement of capacity. These steps help ensure the will’s validity.
Q3: What happens if a person with Alzheimer’s lacks the mental capacity to write a will?
A3: If the person no longer has the mental capacity to write or update a will, an application can be made to the Court of Protection for a statutory will, which will be made in the individual’s best interests.