Question: My father has Alzheimer's disease and wants to make a Will - is he able to do so?
Jennifer McGuinness, Associate Solicitor and expert in will disputes provides the following guidance...
Answer: The fact that your father has Alzheimer's disease (or indeed any other mental health illness) does not itself prevent him from making a Will. A person must however have "testementary capacity". In order for a person to have "testementary capacity" to make a Will they must understand:
- The fact that they are making a Will and it's consequences.
- The extent of their property / assets.
- The claims of those who might expect to be left something in the Will.
- They must not suffer any delusion of the mind which influences how they deal with disposing of their property i.e. leaving legacies in their Will which they would not have made had they been of sound mind
A good solicitor or Will writer will assess when taking instructions if they consider the person has capacity. When there is any doubt or if it is likely that the Will may be challenged in the future they will recommend that medical opinion is obtained before the Will is signed. They should also themselves record how they have assesses the Will maker's capacity. If these practical steps have been taken it makes the Will more robust and less susceptible to challenge. In your father's circumstances it would seem sensible for him to instruct an experienced practitioner to draft his Will and to obtain a medical report before executing his Will.
Whilst there are costs associated with obtaining a medical opinion, those costs are very small in comparison to the costs that would be incurred if the Will were to be challenged int he future on the grounds that your father did not have the capacity to make it. contested cases of this nature can run into the tens of thousands of pounds and considerably delay the administration of the estate.
If it is found that your father does not have testementary capacity, steps can be taken via the Court of Protection to appoint someone to manage his affairs. It is also possible in such circumstances to apply for a "Statutory Will". This is a Will made (or changed) on behalf of someone who cannot do it themselves, by the Court of Protection.
For more information about Will and Inheritance disputes or Court of Protection queries, please contact me on 01925 230000 or firstname.lastname@example.org