Wills for Elderly Parents UK (2026): How to Help Your Parent Make or Update a Will

Dementia does not automatically remove a person's ability to make a will. The legal test for testamentary capacity comes from Banks v Goodfellow [1870] LR 5 QB 549 and requires four things at the time the will is executed: (1) The testator must understand THE NATURE OF MAKING A WILL AND ITS EFFECTS — that the document will dispose of their property on death; (2) The testator must understand THE EXTENT OF THE PROPERTY THEY ARE DISPOSING OF — a general awareness of what they own, not a precise schedule; (3) The testator must understand THE CLAIMS OF THOSE WHO MIGHT REASONABLY EXPECT TO BENEFIT — who the natural beneficiaries are (children, grandchildren, close family) and be able to consider them rationally, even if they choose to exclude some; (4) The testator must NOT SUFFER FROM ANY DISORDER OF THE MIND THAT POISONS THEIR AFFECTIONS, PERVERTS THEIR SENSE OF RIGHT, OR PREVENTS THE EXERCISE OF THEIR NATURAL FACULTIES — delusions (as in Dew v Clark (1826)) that directly influence the dispositions of the will would invalidate it; general confusion that does not affect the specific testamentary decisions would not. Crucially, a person can have dementia and retain testamentary capacity for periods ('lucid intervals'). The test is applied at the moment of execution. A will made during a lucid interval by a person with dementia is valid. The important thing is: DOCUMENT THE ASSESSMENT. If there is any doubt, the solicitor should contemporaneously note their assessment of capacity; if there is real concern, a medical professional (GP, neurologist, psychiatrist) should assess capacity and the assessment should be recorded on the same day as the will is executed.

The 'golden rule' is a well-established best practice (not a legal requirement) for solicitors taking instructions from elderly or apparently ill testators. It was articulated by Templeman J in Kenward v Adams [1975] CLY 3591 and subsequent cases: (1) THE RULE: when taking instructions from an elderly or seriously ill testator, the solicitor should: (a) Ensure a medical practitioner approves the testator as having testamentary capacity; (b) Record the opinion contemporaneously — at the time of giving instructions and/or at execution; (c) Ideally have the doctor present when the will is executed or provide a written opinion obtained as close in time to execution as possible; (2) WHY IT MATTERS: a will challenged on capacity grounds can be defeated even if the testator had capacity, if the solicitor cannot demonstrate they followed proper procedures. Conversely, a thorough contemporaneous capacity record makes it very difficult for disappointed beneficiaries to challenge the will, even if the testator later loses capacity; (3) WHAT THE DOCTOR CONFIRMS: the medical practitioner confirms (using a structured assessment tool like the Golden Rule Assessment or a formal mental capacity assessment under the MCA 2005 framework) that the testator: understands the document is a will; knows what they own (in general terms); knows who their family is and who might expect to benefit; is not suffering from a delusion that affects the dispositions; (4) IN PRACTICE FOR FAMILIES: if you are helping a parent make a will and there is any concern about capacity, ask the instructed solicitor about the golden rule. A solicitor who skips this step with an elderly client is creating risk — both for the estate and for themselves professionally; (5) WHERE THE GOLDEN RULE IS MOST IMPORTANT: a will that makes unusual dispositions (disinherits a child; leaves everything to a new friend or carer; reverses previous stated intentions) will attract particular scrutiny. Following the golden rule rigorously protects the will against challenge.

Undue influence is a serious risk in will-making for elderly parents, particularly where one child takes a dominant role in the process. A will made under undue influence is void (Hall v Hall (1868) LR 1 P&D 481; In re Fulton [2009] NICA 32). Critically, English law does not require proof of force — it can be established by showing the testator's free will was overborne. To avoid any suggestion of undue influence: (1) THE SOLICITOR MUST TAKE INSTRUCTIONS ALONE: the solicitor's instructions conference should happen WITHOUT any family member present. The parent gives their instructions privately — who they want to benefit, in what shares, who should be executor. The solicitor can then discuss with the parent without external pressure. Any child who insists on being present during instructions is creating risk — both for the will's validity and potentially for themselves; (2) WHAT A CHILD CAN DO: (a) Arrange the appointment with the solicitor; (b) Transport the parent to the solicitor's office or arrange a home visit; (c) Provide the solicitor with background information about the family structure (in writing, separately from instructions); (d) Be present during the execution ceremony if the parent wishes (the parent needs two witnesses — ideally solicitor's staff, not family members who are beneficiaries); (3) WHAT A CHILD SHOULD NOT DO: (a) Draft or write the will themselves; (b) Give instructions on the parent's behalf; (c) Be present when the parent gives instructions; (d) Be a witness if they are a beneficiary (WA 1837 s.15 — the gift would fail even if the will is otherwise valid); (e) Discuss what they think the parent 'should' leave or 'probably wants' to leave; (4) WHERE THE RISK IS GREATEST: courts have been alert to adult children (particularly one who cares for the parent or manages their finances) who move in with an elderly parent, take over their affairs, and become the dominant figure in their life. Re Edwards [2007] EWHC 1119 (Ch) — a will leaving everything to one of four children after significant care provision, procured partly through that child's involvement in the will-making process, was set aside; (5) USING A PROFESSIONAL: for large estates, contentious families, or elderly parents with vulnerability indicators, using a specialist will solicitor — not a DIY kit — is strongly recommended. The solicitor acts as an independent safeguard.

If a parent has permanently lost testamentary capacity (as assessed under the MCA 2005 framework — the relevant test for the purpose is Banks v Goodfellow, not the MCA 2005 test, but in practice the two overlap substantially), they can no longer personally make a valid will. However, there is one remaining route: (1) STATUTORY WILL — COURT OF PROTECTION: under MCA 2005 ss.18(1)(i), 22, and 23, the Court of Protection can make a will on behalf of a person ('P') who lacks testamentary capacity. The court applies a 'best interests' test (MCA 2005 s.4) to determine what will would best reflect what P would have made had they had capacity; (2) WHO CAN APPLY: any person who has sufficient interest in P's estate — typically a family member, attorney (under a registered Property and Financial Affairs LPA or Court of Protection deputy), or even the Official Solicitor; (3) PROCESS: the application (COP1 form) is made to the Court of Protection. All people who would be affected by the will (including all potential beneficiaries under intestacy and all people named in any prior will) must be served. The Official Solicitor or other litigation friend may be appointed to represent P. A medical expert (consultant psychiatrist or neurologist) typically provides a capacity report; (4) COST AND TIMELINE: typically £5,000–£15,000 in professional costs; 6–12 months or longer for complex cases. Not a viable route unless the estate is substantial enough to justify the cost; (5) IF NO APPLICATION IS MADE: if P dies without a valid will and no statutory will is obtained, the intestacy rules under AEA 1925 apply automatically. For a married person, the surviving spouse takes the statutory legacy (£322,000 as of 2024 Statutory Instrument) plus half the residue; the other half of residue passes to children in equal shares. Children receive nothing until both thresholds are exceeded; (6) LESSON — ACT EARLY: a statutory will application is expensive, slow, and may not achieve what the person would have wanted. The only effective remedy is to make the will while capacity exists. If there is any concern about a parent's deteriorating capacity, arrange the will urgently — do not delay.

A will is essential but not sufficient for a comprehensive estate and care plan in old age. An elderly parent should have: (1) PROPERTY AND FINANCIAL AFFAIRS LPA (LP1F): arguably more urgently needed than a will — a will only operates on death; the LPA operates during incapacity. Without an LP1F, bank accounts are frozen, property cannot be sold, bills cannot be paid, and the only route is a Court of Protection deputyship (6-12 months; £3,000-6,000+ to apply; ongoing annual reporting costs). LP1F registration: £82 at the OPG; 8-20 weeks to register; must be done while capacity exists; (2) HEALTH AND WELFARE LPA (LP1H): gives an attorney authority to consent to or refuse medical treatment, choose a care home, and make day-to-day welfare decisions. Particularly important for elderly parents who may have strong views about end-of-life care, where they want to live, or what medical treatments they would accept. Without this, medical teams make decisions in the person's best interests under MCA 2005 s.5 — following clinical protocols but not necessarily the person's known preferences; (3) ADVANCE DECISION TO REFUSE TREATMENT (ADRT / 'LIVING WILL'): a legally binding advance decision (MCA 2005 ss.24-26) refusing specific medical treatments under specific circumstances. Must be in writing and witnessed if it relates to life-sustaining treatment. Complements the LP1H — if the attorney is unavailable, the ADRT is directly binding on clinicians; (4) UP-TO-DATE WILL: a will made more than five years ago, or before a major life change (remarriage; property sale; birth of grandchildren; death of executor; significant change in assets), should be reviewed. Marriage after making the will automatically revokes it (WA 1837 s.18) — many elderly parents are unaware that a second marriage in their 70s has revoked their existing will; (5) PENSION NOMINATIONS: expression of wishes for any defined contribution pension, SIPP, or personal pension. Trustees of pension schemes exercise discretion — but the nomination carries significant weight. Update after any major life change. From April 2027 (Finance Act 2024), unused DC pension funds enter the IHT estate — nominations become IHT-relevant as well as beneficiary-identification documents; (6) PRACTICAL RECORD: a signed 'estate planning document' or letter of wishes listing: bank accounts; pension schemes; investment accounts; insurance policies; digital accounts; will storage location; LPA storage location; funeral wishes. This is not a legal document but is invaluable for family members and the executor after death.