Making a Will is one of the most important legal decisions a person can make. It records how they want their assets distributed after death and can help reduce uncertainty for family members. However, for a Will to be valid, the person making it must have the legal capacity to do so.
This issue is often described as testamentary capacity. In general terms, it means the person must understand the nature and effect of making a Will, have a broad understanding of their assets, and recognise the people who may reasonably expect to benefit from their estate.
Capacity is not determined by age alone. An older person may have full capacity to make a Will, while a younger person affected by illness, injury or cognitive impairment may face questions about capacity. The focus is on the person’s understanding at the time the Will is made.
One common misunderstanding is that a dementia diagnosis automatically prevents someone from making a valid Will. That is not necessarily the case. Whether a person with dementia make a valid Will depends on the circumstances, including the stage of the condition and the person’s understanding when giving instructions and signing the document.
Capacity concerns often arise where a Will is changed late in life, where family relationships are strained, or where the Will-maker has recently experienced illness or cognitive decline. In those situations, clear records and appropriate professional advice can be important.
Good Wills and estate planning is not only about preparing documents. It is also about ensuring those documents are made at the right time, with proper understanding, and in a way that reduces the risk of future disputes.
Families can sometimes avoid conflict by encouraging early planning, regular reviews and open discussion where appropriate. While no estate plan can prevent every disagreement, careful preparation can make it easier to respect a person’s wishes and minimise uncertainty after death.
