Making a Will with Dementia: Capacity, Evidence and the Golden Rule
A dementia diagnosis does not prevent making a valid will. Capacity is assessed at the moment of signing — not from the diagnosis. But the evidence must be captured properly, or the will can be challenged. Act quickly.
The Banks v Goodfellow Capacity Test
Every one of the four limbs must be satisfied at the time the will is signed:
Nature of a will
The testator understands what a will is — that it is a legal document that disposes of their property after death and can be changed while alive.
Extent of property
The testator has a general (not necessarily exact) understanding of what they own — their home, savings, investments, and significant assets.
Claims of others
The testator understands who might have a moral or legal claim to benefit from their estate — family, dependants, or people they have promised things to.
No disorder of mind
The testator is not suffering from a disorder of the mind (such as a delusion) that is affecting the content of the will in a way they would not have intended if well.
Banks v Goodfellow (1870) LR 5 QB 549 — still the governing test for testamentary capacity.
Why Speed Matters After a Diagnosis
Act immediately after a dementia diagnosis — before capacity declines further.
- → Dementia is progressive: a person who has capacity today may not have it in 3 months
- → Capacity can deteriorate suddenly after a fall, infection, or stroke
- → Once capacity is lost, only the Court of Protection can authorise a will (costly: £5,000–£15,000+)
- → If no statutory will is obtained and the person dies, the estate passes under intestacy — which may not reflect their wishes
- → A will made in early dementia with proper golden-rule evidence is far stronger than a perfectly drafted will with no evidence
If Capacity Has Already Been Lost
→ Check whether capacity is truly lost
Before concluding capacity has gone, obtain a specialist assessment. Dementia patients can have 'islands of capacity' — periods of clarity in which a valid will can be made. A geriatrician or consultant psychiatrist can advise.
→ Apply for a Statutory Will from the Court of Protection
Under s18 MCA 2005, the Court of Protection can approve a will on behalf of a person who lacks capacity (P). The court decides what P would likely have wanted. The application requires evidence of P's wishes, values, and likely intentions.
→ Consider the intestacy outcome
If no statutory will is obtained and P dies without capacity to change their will, the current will (if any) stands. If there is no will, P's estate passes under intestacy — which may significantly differ from their actual wishes.
→ Ensure an LPA is in place
While the LPA attorney cannot make a will, they can manage the person's financial affairs and ensure the estate is properly maintained. If no LPA exists, a Court of Protection deputyship is needed — expensive and slow.
Frequently Asked Questions
Can a person with dementia make a valid will?
Yes — a diagnosis of dementia does not automatically mean a person lacks testamentary capacity. Dementia is a progressive condition and its effects vary enormously between individuals and at different times of day. The law assesses testamentary capacity at the moment the will is signed — not from the date of diagnosis. The test comes from Banks v Goodfellow (1870) LR 5 QB 549: the testator must (1) understand the nature of making a will and its effects; (2) understand the extent of the property being disposed of; (3) understand the claims of those who might expect to benefit; and (4) not be suffering from a disorder of the mind that poisons the affections, perverts the sense of right, or prevents the exercise of natural faculties. A person in the early stages of dementia may fully satisfy this test. Even a person with moderate dementia may have 'islands of capacity' — periods of clarity in which they can make a valid will. The key is to capture that capacity with appropriate evidence.
What is the 'golden rule' for will drafting in cases of potential incapacity?
The 'golden rule' was stated by Templeman J in Kenward v Adams [1975] CLY 3591: where a will is prepared for an elderly testator or one who is seriously ill, it is the duty of a solicitor to ensure that the making of the will is witnessed or approved by a medical practitioner who is satisfied of the testator's capacity and who records that satisfaction contemporaneously. In practice: (1) The solicitor should arrange for a GP or geriatrician to assess the testator's capacity and record their assessment in writing — ideally a letter confirming the four limbs of Banks v Goodfellow are satisfied; (2) Ideally the medical professional should be present when the will is signed or immediately before and after; (3) The solicitor should take their own detailed file notes of the will-making meeting, recording the testator's understanding, responses to questions, and any unusual features. Following the golden rule does not guarantee the will is unchallengeable — but it provides strong contemporaneous evidence of capacity that makes a successful challenge far harder.
How should capacity be assessed and evidenced for a dementia patient making a will?
Best practice for evidencing capacity: (1) GP letter — ask the treating GP (ideally the one who knows the patient best) to write a letter specifically addressing the four limbs of Banks v Goodfellow. A generic 'has capacity' letter is less useful than one that addresses each element; (2) Specialist assessment — where there is significant doubt or the diagnosis is at a moderate/severe stage, a specialist neuropsychological assessment or psychiatric assessment (by a consultant with expertise in dementia) provides the strongest evidence; (3) Same-day assessment — the assessment should ideally occur on the same day as the will is signed, or at most a few days before. Dementia capacity can fluctuate — a letter from 6 months ago is weak evidence of capacity on the day; (4) Solicitor's attendance notes — the solicitor should record the conversation in detail: what questions were asked, what answers given, whether the testator raised any matters spontaneously, and the solicitor's own impressions; (5) Video recording — in some cases a video recording of the will-making meeting (with the testator's consent) provides contemporaneous evidence that is very difficult to challenge in court.
What happens if a person already lacks capacity to make a will?
If a person has lost testamentary capacity — they can no longer make or alter a will. The options are: (1) Apply to the Court of Protection for a Statutory Will under s18 Mental Capacity Act 2005 and schedule 2. The Court of Protection can authorise a will to be executed on behalf of a person lacking capacity (a 'P') if satisfied it is in P's best interests. The court appoints a person to execute the will. This is an expensive process (typical costs £5,000–£15,000+) and the court must be convinced the will reflects what P would have wanted. A statutory will is a last resort; (2) If P dies intestate, the estate will be distributed under the intestacy rules — the outcome may not reflect what P would have wanted; (3) A deputy (Court of Protection) or attorney under an LPA cannot make a will on the donor's behalf — this power belongs exclusively to the Court of Protection.
What are the early warning signs that a will should be made urgently?
Prompt action is essential when: (1) A dementia diagnosis has been made — even early-stage — the window of clear capacity may close unpredictably and rapidly; (2) A person is showing cognitive decline even before diagnosis — if they are becoming confused, forgetful, or struggling with complex tasks; (3) A person has other serious illness (stroke, brain injury, terminal diagnosis) — capacity can be lost suddenly; (4) A person mentions wanting to change their will but has not done so. The safest time to make or update a will is when there is no doubt about capacity. Once a challenge is threatened, any will becomes much more expensive to defend. The WillSafe kit is designed for people with clear mental capacity — if there is any doubt about capacity, a solicitor following the golden rule should be used.
Make Your Will While You Clearly Have Capacity
The WillSafe kit is designed for people with full mental capacity who want a legally valid, professionally structured will without solicitor costs. From £19.97 for England and Wales. If there is any doubt about capacity, use a solicitor following the golden rule.