Making a Will When Capacity is Uncertain
A diagnosis of dementia, memory problems, brain injury or another condition does not automatically prevent someone from making a will.
Quick-read summary:
The legal question is whether the person has testamentary capacity for the will they are making at the relevant time. Someone may have difficulty with other decisions and still have sufficient capacity to make a will.
Where there is a genuine concern, fern wills & lpas may recommend an enhanced testamentary-capacity will service rather than treating the matter as an ordinary standard will appointment. The enhanced service includes a longer professional review and a formal written testamentary-capacity report. It is not a fee for a guaranteed “yes” outcome.
In some cases it may be more appropriate to obtain independent specialist evidence first. If that specialist evidence supports testamentary capacity and fern is then satisfied that it can properly take the person’s instructions, fern’s normal standard will fee would usually apply rather than the enhanced-review fee. The specialist’s own fee is separate.
If you are unsure which route is appropriate, contact fern before booking. A short preliminary conversation can usually establish the sensible next step without pretending to decide capacity over the telephone.
The process in one minute
- Start with a short preliminary conversation so Fern can understand the circumstances and decide which appointment route appears proportionate.
- If there is no material capacity concern, use the ordinary Standard Will service.
- If Fern needs a more detailed professional process, use the enhanced testamentary-capacity Will service.
- If independent clinical evidence is the better starting point, you may go to an independent specialist first.
- Will instructions always come from the person making the Will. Family can help prepare factual details, but cannot give the Will instructions.
- After an enhanced review, Fern may proceed, stop because it cannot safely proceed, or recommend independent specialist evidence before deciding.
Can someone still make a will after a dementia diagnosis?
Often, yes. A diagnosis is important background information, but it is not an automatic legal finding that the person cannot make a will.
Capacity is specific to the decision being made and can vary over time. A person who needs help with some financial or day-to-day decisions may still understand the particular decisions needed to make a will. The important question is what the person understands and can decide at the relevant time, not the label attached to a diagnosis.
That is why fern does not use a simple pass/fail label based on age, diagnosis, appearance or somebody else’s opinion. Where there is a genuine concern, the process becomes more careful and more evidence-focused.
What does testamentary capacity mean?
Testamentary capacity is the legal capacity required to make a valid will.
Under the current law in england and wales, the person making the will needs to understand the essential nature and effect of what they are doing. In practical terms, this means being able to understand matters such as:
- that they are making a Will which will take effect on death;
- the broad nature and extent of the property and assets they are dealing with;
- the people who might reasonably expect to be considered and the effect of including or excluding them; and
- the contents of the Will they are approving.
Perfect memory is not the test. Nor does somebody need to be able to manage every aspect of their finances independently. The question is whether they can make this particular testamentary decision.
Why might fern recommend an enhanced review?
Most will clients do not need an enhanced testamentary-capacity review. It is used where there is a genuine reason to slow the process down, explore the client’s understanding more carefully and create a stronger contemporaneous record.
Examples may include:
- a dementia diagnosis, significant memory problems or a condition that may affect decision-making;
- confusion which appears to vary from day to day or at different times of day;
- a serious illness, brain injury or medication issue that may affect understanding;
- a substantial later-life change to an existing Will, particularly where the change is difficult to explain;
- an exclusion, unequal gift or family situation where a later challenge is realistically foreseeable; or
- something during the instruction process which gives a genuine reason to question whether the person understands the Will decisions being made.
None of these points proves that capacity is lacking. They are reasons to use a more careful process rather than assume the answer either way.
My title test
What happens before an appointment is booked?
Fern may first have a short preliminary conversation to understand the circumstances. That conversation is not itself a testamentary-capacity assessment. Its purpose is to decide which of three routes appears the most sensible starting point.
These are starting routes. They are different from the possible outcomes if fern later carries out an enhanced review.
Route 1: standard will service
Where there is no genuine reason for an enhanced capacity process, the ordinary standard will service remains the appropriate route.
Route 2: fern enhanced testamentary-capacity will service
Fern will not prepare a will simply because a family wants one completed. If the review leaves fern unable to accept the instructions with appropriate professional confidence, the will work stops at that point.
If the enhanced review and formal report have been completed, the agreed enhanced-service fee remains payable in full. You are paying for the professional review and report, not for a guaranteed “yes” conclusion. If the matter stops before the agreed stage has been completed, charges may still be payable for work already carried out under the client care letter and terms of business. This is essential to protect the client and beneficiaries from accusations that the will writer was incentivised to provide a positive outcome.