Is a will valid if the will-maker had dementia when it was made?

Yes, if the will-maker understood

  • That she was making a will, and that a will disposes of her property when she dies,
  • What property she owned, and in a general way what it was worth,
  • Which people are the natural objects of her generosity, and
  • How she wants to distribute her property.
  • The testator must also be free of delusions that affect the making of the will

The will-maker (testator) must understand the 1st four points on her own.  It is not enough to simply make rational responses to questions or repeat some memorized formula.  However, the testator need not have an accountant’s knowledge and understanding of her estate, know what specific investments are in her portfolio or how much income they generate.  In fact, the courts know that if this was required many people would be unable to make a will.

If the testator understood these things, the will is valid whether she had some degree of dementia at the time or not.  The court will look at the evidence of both doctors and lay people to determine whether the testator had testamentary capacity.

In Maliwat v. Gagne, the testator had been diagnosed with dementia three years before signing the will.  Before making his will he had problems with his bills and banking, and had several minor car accidents.  A few weeks after he signed the will he was seen by a geriatric psychiatric outreach team and could not tell them what year it was, when he was born, when he was married, what his address was, or what his income, expenses, bills, medication or illnesses were.  A few months later he could not remember where he left his car.  Despite his problems, the testator was proud of his independence and refused help.  The court weighed all these factors and concluded that the testator did not have testamentary capacity when he signed the will. 

In Brammall v. United Kingdom the court considered whether the testator’s delusions affected his ability to make a will.  He thought somebody was poisoning him by introducing noxious gases into his apartment.  He thought he was being spied on and followed.  He had been diagnosed as being a depressed hypochondriac with a possible delusional disorder.  He left his estate to the United Kingdom of Great Britain, and left nothing to his relatives.  The court decided that although the testator was delusional, he was rational and competent when it concerned his estate and its disposition.  He knew what he wanted to do with his estate.  He understood its value and he was well aware that he had a brother and a niece.  His attitude to his brother was consistent and it is clear that it was not an affectionate one.  There was no evidence to suggest that the testator’s delusions were responsible for or influenced his decision to exclude his brother from his will.

Determining if the will is valid can be difficult, but we can help.  Contact us.

Read the cases:           Maliwat v. Gagne

                                    Brammall v. United Kingdom of Great Britain & Northern Ireland

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