Mum has Dementia, I need to make a Will for her: Capacity in Estate Planning

Making a Will is an important part of planning for the future, but many people overlook the issue of “capacity” when creating their estate plan.  Capacity refers to a person's ability to understand the nature and effect of their decisions, and to make rational and informed choices. In the context of Will-making, capacity is essential to ensure that the person making the Will has the mental capacity to understand the contents of their Will and the consequences of their decisions.

Why is capacity so important?

In order for a Will to be valid, the person making the Will must understand the nature of the act of making a Will, the extent of their property, the identity of their beneficiaries and the ability to assess who may have a claim on their estate.

The issue of capacity can lead to potential claims being made against a Will in the future.  For example, a family member left out of the Will, or one who believes that they did not receive an adequate share of an estate, may claim that the testator lacked capacity at the time the Will was made, or that they were unduly influenced by another person. This can lead to lengthy and costly legal battles, and can cause significant emotional distress for family members and loved ones.

Dementia and Will-Making

One of the key issues affecting capacity in estate planning is dementia, a condition that affects a large number of elderly Australians.  Dementia can cause significant cognitive impairment, including memory loss, confusion, and difficulty with decision-making. This can make it difficult for people with dementia to make informed decisions about their estate planning, and can increase the risk of disputes over the validity of their will.

Having dementia does not necessarily mean that a person cannot make a valid Will – particularly if that person has periods of lucidity and can demonstrate that they understand the nature of the act of making a Will and the consequences of their decisions.

To determine whether a person with dementia has the capacity to make a Will it may be necessary to seek advice from a medical professional or an experienced lawyer, to conduct a capacity assessment and help determine whether the person can make rational and informed choices.

In cases where a person with dementia is unable to make a valid Will, there may be other options available to ensure that the person’s wishes are respected and that their estate is distributed according to their wishes.

Estate Planning Options

The experienced Wills and Estates team lawyers at Lamrocks Solicitors can provide you with advice and help to determine the best course of action for you and your loved one if they lack capacity to make a valid Will. 

For example, one option is to apply to the Supreme Court of NSW for a statutory Will that is made by the Court on behalf of someone who lacks capacity to make a valid Will.  The Court is able to consider evidence from a range of sources including medical professionals, to determine what the person’s wishes and intention would be if they had capacity and make a Will that is binding and enforceable.

Alternatively, a trust can be a useful option for estate planning because it can also provide for the ongoing management of a person’s assets.

If your family member or loved one does not have a Will and has been diagnosed with dementia, it is important to determine the best possible course of action quickly.  Contact the team at Lamrocks Solicitors on ph: 02 4731 5688 for more information and confidential, empathetic advice regarding your options.