Can A Person With Alzheimers Make a Will?

Alzheimer’s disease is a form of dementia. Three in ten people over the age of 85 and almost one in ten people over 65 have dementia.

Under the laws of Western Australia wills may be contested if the maker of the will was found not have the mental capacity to understand what was occurring when they made the will.

 

How can Alzheimer’s/dementia affect making a will?

Alzheimer’s dementia is an insidious disease.  It can progress rapidly or slowly and may be difficult to pick up in the early stages.  Often the sufferer is (perhaps mercifully) unaware that they have it.

During this early period dementia patients are vulnerable to the influence of family members and others attempting to pressure them. This “pressure” may be to change the terms of the will to a family member’s advantage, for instance or to benefit a ‘carer’.

On the other hand, there may be very good reasons why a person with Alzheimer’s wishes to update their will and the beneficiaries of that will wish to defend it against a challenge.

 

How is mental capacity determined?

It may be difficult to tell just by looking at the will that the person making it lacked testamentary capacity.  A person with dementia is completely and legally allowed to sign a will.   It can only be challenged once the person has dies and probate is sought for the will.

The court’s approach will typically look at three factors in deciding whether a will is invalid on the grounds of testamentary capacity:

1)         The terms of the will itself (does it make sense having regard to all the circumstances or does it, for example, change a long standing understanding to favour one child or other person?);

2)         Was the will properly explained to the will maker?  Having a will made by an experienced solicitor help in this situation.

3)         Medical evidence.  This may include a Mini Mental Examination or a MoCA (Montreal Cognitive Assessment) Test (you know, the one President Trump‘aced’.

If you believe mental capacity was an issue during the will-making process, you may be eligible to contest the will. Speak to a lawyer experienced at contesting a will to learn your rights and options.

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