We advise about capacity when making a will.
‘I decided to make a will after being diagnosed with dementia. Do I need to involve my doctor in this?’
To make a will that will be acted on after you’ve died, you need to have something called ‘testamentary capacity’ when you write it.
This means that you understand what you’re doing when you’re making the will, and what its effects will be. So, you need to understand what assets you have, such as property and money, as well as who could expect to inherit anything from you.
If someone thinks you didn’t have testamentary capacity when you wrote your will, they could use this as a reason to dispute it.
Getting a medical opinion when you’re writing the will can help to avoid this, meaning your wishes are more likely to be carried out.
There’s no legal requirement to involve a doctor when making a will, whether or not you have dementia. But, because wills are sometimes contested, the courts have set out a ‘golden rule’.
This says that when someone making a will is older, ill or has a condition that could affect their ability to make decisions, then it’s best practice for a medical practitioner to check that the person has testamentary capacity.
So, although you don’t have to involve a doctor if you write a will after being diagnosed with dementia, doing this can make things clearer for everyone later on.
If you’re writing a will with a solicitor’s help – which is what’s recommended when someone has a dementia diagnosis – they’ll probably follow this best practice by asking a medical expert to certify that you have testamentary capacity.
If you’re doing it without a solicitor, you can choose whether or not to get your doctor involved.
The doctor can charge you to do this. However, bear in mind that if you don’t, it might create problems in future.
If someone believes that you didn’t have the testamentary capacity needed to make your will, then they could contest it.
This can cause arguments and tension among family members, and the legal fees needed to resolve this can be high.
While these cases are rare, it’s something to consider when deciding whether to seek a medical opinion – getting one could prevent or ease any later arguments.
Occasionally, a doctor might be reluctant to give opinions about their patients’ ability to make a will.
Often, this isn’t because they think a particular person isn’t able to make a will. Instead, they may feel it isn’t part of their job to give an opinion on this (they aren’t obliged to do it).
If your doctor refuses to certify that you have testamentary capacity, then check why this is. If it’s because they don’t see it as their role, then consider asking another medical professional.
People sometimes ask another GP or a consultant at the memory clinic, or they pay to have it done privately.
Legal and financial
The various financial and legal issues that someone with dementia and their carer may want to consider, and sources of help and support.