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What makes a will valid?

View profile for Emma Harper
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It has been reported today in a leading case heard in the England and Wales High Court, that despite having dementia, an individual can still make a valid will.

When someone is making a will, a lawyer must ensure that they have the mental capacity to do so. Perhaps the most widely used test is set out in the well documented case of Banks v Goodfellow.  It was decided in this instance that, for someone to be able to make a will, they should have an understanding of their family structure, the nature and value of their estate, and how the will distributes this after their death. Therefore, even though the subject of the case suffered from delusions, as these had no bearing on his finances, or family members, the will was held to be valid.

The recent case of Lloyd v Jones underlines this test for capacity. Mrs Harris made a Will leaving a legacy of £10,000 to her daughter, and the residue of her £600,000 estate to her son. Despite Mrs Harris suffering from Alzheimer’s type dementia, which included delusions and confusion, the court was satisfied that did not mean she necessarily lacked the capacity to make a will, and understand and approve the terms.

There is not usually a defining moment when someone loses capacity, more a gradual decline. In these cases it is always advisable to seek professional advice to ensure the correct steps are taken to protect any will that is made from challenge.

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