Does a Dementia Diagnosis Automatically Make a Will Invalid?

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No, a dementia diagnosis does not automatically invalidate a Will. Under the Banks v Goodfellow test, a Will is only void if the condition prevented the testator from understanding the act of making a Will, the extent of their assets, or their moral obligations at the specific moment of signing.

dementia

The Intersection of Medicine and Law

For “The Skeptic,” a diagnosis of Alzheimer’s or Vascular Dementia feels like an open-and-shut case. However, the law does not look for a medical label; it looks for functional capacity. In the UK, a person is presumed to have capacity until proven otherwise.

The “Lucid Interval” Defense

Courts acknowledge that dementia often involves fluctuating capacity. A testator may be confused on Tuesday but have a “lucid interval” on Wednesday when they sign their Will.

  • The Proponent’s Goal: To prove the Will was signed during a period of clarity.
  • The Skeptic’s Goal: To prove the “disorder of the mind” was so pervasive that a lucid interval was impossible.

The “Golden Rule” and the Solicitor’s Duty

One of the strongest weapons in a validity challenge is the Golden Rule. Established in the case of Kenward v Adams (1975), it dictates that when a solicitor is instructed by an elderly or seriously ill client, they should:

  1. Request a medical opinion on the testator’s capacity.
  2. Have a medical professional witness the signing of the Will.

If you find that your loved one signed a Will while suffering from dementia and the solicitor failed to follow this rule, the Will becomes highly vulnerable. The court will view the lack of a medical witness as a “suspicious circumstance.”

How Dementia Impacts the Three Limbs of Capacity

To set aside a Will, we must demonstrate that the dementia specifically impaired one of these three functions:

A. Understanding the Nature of the Act

Did the testator understand they were creating a legally binding document that would distribute their life’s work? Dementia can cause “executive dysfunction,” where a person can read the words but cannot comprehend the finality of the action.

B. Understanding the Extent of the Estate

Does the testator know what they own? If a parent with dementia signs a Will leaving a house they sold five years ago to a sibling, this is evidence that their “internal map” of their assets has been destroyed by the disease.

C. Comprehending Moral Claims

This is where “The Skeptic” usually finds the most evidence. Dementia can cause “personality changes” or “paranoia.” If a testator suddenly excludes a lifelong friend or a child because of an unfounded delusion that they were “stealing,” the Will fails this limb.

Gathering the Evidence: The Investigation

  • MMSE and MoCA Scores: These are standard cognitive tests. A score below a certain threshold (often 24/30) can be a powerful indicator of incapacity.
  • Larke v Nugus Statement: We must ask the solicitor: “Did you ask the testator why they were changing their Will?” If the solicitor has no notes, their “witnessing” of capacity is weak.
  • Nursing Home Logs: Often, the most telling evidence isn’t from a doctor, but from a caregiver’s daily log: “Patient confused, did not recognize family today.”

For medical guidelines on dementia and mental capacity, check Alzheimer’s Society – Mental Capacity and Legal Documents

The Burden of Proof: Shifting the Scales

In a standard probate case, the person proving the Will (the executor) has the initial burden. However:

  • If the Will looks rational and was signed correctly, the court presumes capacity.
  • The Shift: Once “The Skeptic” provides medical evidence of dementia, the burden of proof shifts back to the executor. They must now prove, beyond a doubt, that the testator had capacity.

The Evidentiary Weight of “Day-to-Day” Observations

While clinical records provide the skeleton of a capacity challenge, the “muscle” of the case often comes from non-medical witnesses. As a Validity Specialist, we look for “lay evidence”, statements from neighbors, long-term friends, or even local shopkeepers who interacted with the deceased daily. If a neighbor can testify that the testator was wandering the street confused or failing to recognize their own front door in the weeks surrounding the Will’s execution, this provides a vivid, functional context that a sterile medical chart might miss. In court, this evidence is often used to “rebut” the solicitor’s claim that the testator appeared lucid during their 30-minute office appointment.

Retrospective Medical Assessments (The “Paper Trail” Diagnosis)

In many cases, a medical professional was never asked to assess the testator while they were alive. In these scenarios, “The Skeptic” must rely on a Retrospective Medical Report. This involves commissioning a consultant psychiatrist to review every scrap of available data, from GP records and prescription dosages to social service reports, to form an expert opinion on the likely state of the testator’s mind at the moment of execution. Because this expert never met the deceased, their report must be meticulously argued, focusing on how the recorded symptoms of dementia would have specifically interfered with the testator’s ability to “weigh and balance” the moral claims of their family members.

The “Sharp Focus” of Delirium vs. Permanent Decline

It is vital to distinguish between permanent cognitive impairment (like late-stage Alzheimer’s) and “Acute Delirium.” Often, a Will is signed in a hospital setting while the testator is battling a secondary infection, such as a UTI or pneumonia. Medical science confirms that these infections can cause sudden, temporary “brain failure” in the elderly, leading to hallucinations or total disorientation. If the Will was signed during such a medical crisis, the document is highly susceptible to being set aside. Even if the testator “seemed okay” to a layperson, the underlying medical data may prove they lacked the cognitive “bandwidth” to weigh complex moral claims at that specific moment.

Challenging the “Hand-Guided” Signature

In many cases involving advanced dementia, the physical execution of the Will becomes a point of contention. “The Skeptic” should look closely at the signature itself. Was the testator’s hand “guided” by a beneficiary? While English law does allow for a “signed on behalf” signature under Section 9 of the Wills Act 1837, it requires very specific formalities. If a beneficiary physically moved the testator’s hand to sign the document because the testator was too confused or frail to do so voluntarily, this is not a valid execution. It suggests a lack of both capacity and independent “Knowledge and Approval,” rendering the document a legal nullity.

Read our guide to learn more: The Guided Hand: Contesting a Will Based on Forgery or Forced Signature

The Evidentiary Weight of “Day-to-Day” Lay Witness Testimony

While clinical records provide the skeleton of a capacity challenge, the “muscle” of the case often comes from non-medical witnesses. We look for “lay evidence”, statements from neighbors, long-term friends, or local shopkeepers who interacted with the deceased daily. If a neighbor can testify that the testator was wandering the street confused, failing to recognize their own front door, or dressing inappropriately for the weather in the weeks surrounding the Will’s execution, this provides a vivid, functional context. In court, this evidence is often used to rebut a solicitor’s claim that the testator appeared lucid during a brief 30-minute office appointment.

Stop the Wrongful Will

A dementia diagnosis is a red flag, not a finish line. To stop an invalid Will from being proved, you must act quickly to secure medical records and lodge a caveat.

For a complete look at the legal requirements for capacity, see our Complete Guide to Contesting a Will on Grounds of Lack of Capacity.

Download The Capacity Evidence Checklist to see if your evidence meets the legal threshold for a challenge.

FAQs

Q1: Can a Will be valid if the testator was in a coma shortly after signing?

Yes, it is possible. This is known as the rule in Parker v Felgate. If a testator had capacity at the time they gave instructions to a solicitor, and the Will was prepared according to those instructions, it may still be valid even if their capacity declined significantly by the time they actually signed the document, provided they understood they were signing a Will they previously authorized.

Q2: Does “forgetfulness” count as a lack of capacity?

No. The courts have long held that “a flickering mind” or a “failing memory” does not necessarily equal a lack of testamentary capacity. To win a challenge, you must prove that the forgetfulness specifically prevented them from understanding one of the Banks v Goodfellow limbs. Simple “senior moments” are not enough to set aside a legal document.

Q3: What happens if the Will is found invalid?

If the court rules that the testator lacked capacity, the Will is “set aside.” The law then looks for the previous valid Will. If no previous Will exists, the estate is distributed according to the Rules of Intestacy, which prioritize spouses and biological children. This is why “The Skeptic” must always check the contents of previous Wills before starting a challenge.

Act Now to Stop Probate

A dementia diagnosis is the starting point of an investigation, not the end. If you suspect a “FAKE” Will has been produced because a loved one was not of sound mind, you must lodge a caveat immediately.

Read our guide to learn more about caveats: The 2025 Caveat Surge: How to Stop an Unfair Will in its Tracks

Let’s Do This Together

Contesting a will could become an overwhelming experience if not accompanied by expert guidance and support. Our mission is to provide you with all the needed information, support, and authority to get through this journey, with only one goal in mind: Justice.

To our team, this process is not about winning; it’s about claiming what was yours from the beginning.

Get your free, no-obligation case assessment. Call 08002980029 or visit contestawilltoday.com

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Frequently asked questions.

Disputes over wills can arise in several circumstances, including:

  • Testamentary capacity: The person who made the will (known as the testator) must have had the mental capacity to understand what they were doing and the consequences of their actions. This means that they must have been able to understand the nature and extent of their property, the people they were giving their property to, and the people they were excluded from their will.

 

  • Valid execution: The will must have been executed correctly under the law. This means it must be in writing, signed by the testator, and witnessed by two independent witnesses.

 

  • Undue influence: The testator must have made the will freely and without any pressure from others. The will may be invalid if someone was unduly influenced to make a will. Undue influence can occur when someone takes advantage of a testator’s vulnerability, such as if the testator is elderly, ill, or has a mental disability.

 

  • Fraud or forgery: If the will was forged or if someone fraudulently induced the testator to make the will, the will may be invalid.

 

Claims against a will must usually be made within six months of the grant of probate being issued. This is the legal document that gives the executor the authority to administer the estate. If a claim is not made within this time, it may be too late to challenge the will.

As such, executors often wait until this six-month period has expired before distributing the estate. This is to avoid having to distribute the estate and then having to take it back if a successful claim is made against the will.

Here are some examples of how these disputes can arise:

  • A family member may dispute a will if they believe that the testator did not have the mental capacity to make a will. For example, if the testator was suffering from dementia or Alzheimer’s disease at the time the will was made.
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A family member may dispute a will if they believe that it was not executed correctly. For example, if the will is not signed by the testator or if it is not witnessed by two independent witnesses.

 

  • A family member may dispute a will if they believe that they were unduly influenced to make the will. For example, if a caregiver or another family member pressured the testator to make the will in their favour.

 

  • A family member may dispute a will if they believe that it was forged or if someone fraudulently induced the testator to make the will. For example, if someone forged the testator’s signature on the will or if someone lied to the testator about the contents of the will.

If you are thinking about disputing a will, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.



Types of Trusts

Many different types of trusts can be set up, depending on your specific needs and goals. Some of the most common types of trusts include:
Bare Trusts: A bare trust is a simple type of trust in which the trustee holds the assets for the benefit of the beneficiary. The beneficiary is entitled to the income and capital of the trust as soon as they are old enough to receive them.

Interest in Possession Trusts: An interest in possession trust is a type of trust in which the beneficiary is entitled to the income from the trust immediately, but not to the capital until a later date. This type of trust is often used for minor beneficiaries or for beneficiaries who are not yet responsible enough to manage their own money.

Discretionary Trusts: A discretionary trust is a type of trust in which the trustee has the discretion to decide how and when to distribute the income and capital of the trust to the beneficiaries. This type of trust is often used for families with multiple beneficiaries or beneficiaries with special needs.

Accumulation Trusts: An accumulation trust is a type of trust in which the income from the trust is accumulated and not distributed to the beneficiaries until a later date. This type of trust is often used to save for a specific purpose, such as a child’s education or a retirement fund.

Mixed Trusts: A mixed trust is a type of trust that combines elements of different types of trusts. For example, a trust may be a discretionary trust for one beneficiary and an interest in possession trust for another beneficiary.

Settlor-Interested Trusts: A settlor-interested trust is a type of trust in which the settlor (the person who creates the trust) retains some interest in the trust assets. For example, the settlor may retain the right to receive income from the trust or to appoint the trustee.

Non-Resident Trusts: A non-resident trust is a type of trust that is created and governed by the laws of a country other than the country where the settlor or beneficiaries reside.
Which type of trust is right for you will depend on your specific needs and goals. It is important to consult with an estate planning attorney to discuss your options and choose the type of trust that is best for you.
Here are some examples of how different types of trusts can be used:
A bare trust can be used to hold assets for a minor child until they reach the age of majority.

An interest in possession trust can be used to provide income to a beneficiary who is not yet responsible enough to manage their own money.

A discretionary trust can be used to manage assets for a family with multiple beneficiaries or for beneficiaries with special needs.

An accumulation trust can be used to save for a specific purpose, such as a child’s education or a retirement fund.

A mixed trust can be used to achieve a variety of different goals, such as providing income to one beneficiary and preserving capital for another beneficiary.

A settlor-interested trust can be used to retain some control over trust assets after the settlor has created the trust.

A non-resident trust can be used to reduce estate taxes or to protect assets from creditors.
It is important to note that this is just a brief overview of the different types of trusts. There are many other types of trusts available, and each type of trust has its own specific features and benefits. For more information please visit www.gov.uk/trusts-taxes/types-of-trust

Inheritance trust disputes can be complex and varied, but some common scenarios include:

  • Disputes over the validity of the trust: This can happen if the settlor (the person who created the trust) does not have the mental capacity to create a trust, or if the trust deed was not executed correctly.

 

  • Disputes over the interpretation of the trust deed: If the trust deed is poorly drafted or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • Disputes over the appointment or removal of trustees: Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee is not acting in the best interests of the beneficiaries, the beneficiaries may apply to the court to have the trustee removed.

 

  • Disputes over the investment of trust assets: Trustees have a legal duty to invest trust assets prudently. If a trustee makes investments that are too risky or that lose money, the beneficiaries may sue the trustee for breach of duty.

 

  • Disputes over the distribution of trust assets: Trustees have a legal duty to distribute trust assets to the beneficiaries in accordance with the terms of the trust deed. If a trustee distributes trust assets incorrectly, the beneficiaries may sue the trustee for breach of duty.

 

Here are some specific examples of inheritance trust disputes that have occurred in the UK:

  • In one case, a beneficiary disputed the validity of a trust deed on the grounds that the settlor (the person who created the trust) did not have the mental capacity to create a trust at the time it was set up.

 

  • In another case, a beneficiary sued the trustees for breach of duty after the trustees made a number of risky investments that lost money.



  • In a third case, a beneficiary sued the trustees for breach of duty after the trustees distributed trust assets to the beneficiaries in a way that was not in accordance with the terms of the trust deed.

 

Other possible disputes include:

  • A beneficiary was expecting more than what is set out in the trust document. This may be because the beneficiary had a reasonable belief that they would receive more, or because the trust document is unclear about the beneficiary’s entitlement.

 

  • The individual who set up the trust was provided with negligent or misleading advice. If the settlor was not properly advised about the consequences of setting up a trust, or if they were given incorrect information, they may be able to challenge the trust.

 

  • The trust document is either incomplete or unclear about the wishes of the deceased. If the trust document is incomplete or unclear, it can lead to disputes between the trustees and beneficiaries about how the trust should be administered.

 

  • A trustee acts against the best interests of the beneficiary or doesn’t administer the trust correctly. Trustees have a legal duty to act in the best interests of the beneficiaries. If a trustee breaches their duty, the beneficiaries may sue the trustee.

If you are involved in an inheritance trust dispute, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

Contesting a will is challenging the validity of a will. This can be done on a number of grounds, including.

  • The testator (the person who made the will) did not have the mental capacity to make a will.
  • The will was not executed correctly, i.e., it was not signed by the testator or witnessed by two independent witnesses.
  • The testator was unduly influenced to make the will.
  • The will was forged or fraudulent.

 

Contentious probate is any dispute about the administration of a deceased person’s estate. This can include disputes about

  • The validity of the will.
  • The interpretation of the will.
  • The appointment or removal of executors.
  • The distribution of the estate assets.
  • The management of the estate.
  • In the UK, contentious probate is dealt with by the High Court.

 

The main difference between contesting a will and contentious probate is that contesting a will is specifically challenging the validity of the will, while contentious probate can include a wide range of disputes about the administration of an estate.

Here is an example:

Contesting a will: A beneficiary challenges the validity of a will on the grounds that the testator did not have the mental capacity to make a will.

Contentious probate: A beneficiary disputes the interpretation of a will and argues that they are entitled to a larger share of the estate than they have been given.

It is important to note that the two terms are often used interchangeably. For example, a lawyer might say that they are “dealing with a contentious probate matter” when they are actually challenging the validity of a will.

If you are thinking about contesting a will or pursuing a contentious probate claim, it is important to seek legal advice as soon as possible. We can assess your case and advise you on your legal options.

The time limit for making a contentious probate claim in the UK is six months from the grant of probate. This is the legal document that gives the executor the authority to administer the estate.

If you do not make your claim within this six-month time limit, you may need to apply to the court for permission to make a late claim. The court will only grant permission if you have a good reason for not making your claim on time.

There are a number of factors that the court will consider when deciding whether to grant permission for a late claim, including:

  • Why did you not make your claim on time?
  • The strength of your case.
  • Whether the other beneficiaries will be prejudiced if your claim is allowed to proceed.
  • If the court grants you permission to make a late claim, you will need to file your claim within 28 days.

 

It is important to note that there are some exceptions to the six-month time limit. For example, if the executor has committed fraud or concealed assets from the beneficiaries, the beneficiaries may be able to make a claim after the six-month time limit has expired.

If you are thinking about making a contentious probate claim, it is important to seek legal advice as soon as possible. A lawyer can assess your case and advise you on the time limits that apply and whether you have a good case.

Here are some examples of when you might be able to make a late contentious probate claim:

  • You were not aware of the death of the deceased until after the six-month time limit had expired.
  • You were unable to make your claim on time because you were ill or incapacitated.
  • The executor has deliberately concealed information from you about the estate.
  • The executor has committed fraud in the administration of the estate.

 

The 12-year limit for making a contentious probate claim in the UK applies to claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975. This means that if you are making a claim for financial provision from an estate, you must do so within 12 years of the date of the deceased’s death.

The reason for the 12-year limit is to encourage people to make their claims as soon as possible after the deceased’s death. This is because it can become more difficult to investigate and prove a claim after a long period of time has elapsed.

If you are unsure whether you are able to make a late contentious probate claim, you should seek legal advice.

Most disputes in the UK are resolved out of court through mediation and negotiation. This is because it is generally faster, cheaper, and less stressful for all involved.

If you are considering disputing a will, it is important to contact a contentious probate specialist before you involve any other relatives or beneficiaries of the estate. A specialist lawyer can advise you on your legal options and help you to resolve the dispute quickly and efficiently.

Here are some of the benefits of resolving a will dispute out of court:

  • It is faster and cheaper than going to court.
  • It is less stressful for all involved.
  • It allows you to maintain relationships with other family members and beneficiaries.
  • You have more control over the outcome of the dispute.

 

There are a number of steps that you can take to try to resolve a contentious probate dispute without going to court, including

  • Negotiation: You can try to negotiate a settlement with the other parties to the dispute. This may involve making concessions on your part, but it can be a good way to avoid the time and expense of court proceedings.
  • Mediation: Mediation is a process where an independent mediator helps the parties to reach a mutually agreeable settlement. Mediation can be a good way to resolve a dispute without going to court, but it is important to note that it is not binding on the parties.
  • Arbitration: Arbitration is a more formal process than mediation, and it is binding on the parties. However, it can still be a good way to resolve a dispute without going to court.

 

If you are unable to resolve the dispute amicably, you will need to file a claim with the High Court. The court will then hold a hearing to decide the case.

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