While everyone should think about completing a Will sooner rather than later, all too often some people wait a little too long to wrap up this critical legal work. The longer a person waits to draft and sign their Will, the greater the chance for a mental illness or disease, such as dementia or Alzheimer’s, to befall them.
Determining the validity of the will
There are several factors that determine if a Will is valid, one of which includes whether the person making the Will had “testamentary capacity” at the time. Testamentary capacity means that the person making or signing the Will understood the legal effect and ramifications of the Will, knew the extent of their assets, and was aware of who would normally be the beneficiaries of the estate. Lastly, the person making or signing the Will must not be inhibited by grounds of mental illness or mental disease, such as dementia or Alzheimer’s.
If the person signing the Will has dementia and lacks testamentary capacity, this can invalidate the Will. A person suffering from dementia that signs a Will leaves the estate open for a potential claim after they have died. In this case, a family member or partner may contest the Will based on the presumption that, due to mental impairment, the decedent was not aware of his or her assets, the situation, or the ramifications of signing the Will.
However, a person with dementia may still have the capacity to make all or some decisions. Further, other factors may impact a person with dementia’s decision-making capacity, causing it to fluctuate between functioning normally and being incapacitated. Things like the setting, time of day, or people around the individual with dementia.
There are certain exemptions, and in some instances a person with dementia can have a Will created on their behalf.
Special provisions for testamentary capacity
Depending on certain limited circumstances, there are instances where a decedent’s Will could be valid even if he or she had dementia.
For instance, in Queensland, The Succession Act 1981 includes special provisions wherein the Supreme Court may authorise a will to be made or altered on behalf of a person without testamentary capacity. There are conditions that must be met first though. The individual must still be alive, must lack testamentary capacity, and the Will must be approved by the court.
Do you have questions about how dementia can impact yours or a loved one’s Will? Contact the team at Gerard Malouf and Partners to learn more today.