Can a person with dementia sign a will?
Published 30 Jun 2020
According to the World Health Organisation, more than 50 million people around the world suffer from dementia, with Alzheimer's disease being the most common form.
Because dementia is a syndrome that disproportionately affects the aged, it can have a significant impact on the legal matters of one's enduring documents. Under the laws of Queensland and New South Wales alike, wills may be contested if the creator of the will was found to not have the mental capacity to understand what was occurring.
How can dementia impact will-signing?
In its most advanced stages, dementia has untold repercussions socially, psychologically and physically. Of course, seniors with dementia – nor their loved ones – may be aware they are suffering at first, and how quickly the syndrome may be progressing.
It's during this window of time that dementia patients are unduly susceptible to the outside influence of others attempting to pressure the testate. This "pressure" may be in the form of persuading the testate to change the terms of the will to a given beneficiary's advantage, for instance.
Similarly, dementia sufferers may not be prepared to sign the will at all – either because the will is not complete or testate's may have other more immediate demands, such as their medical care.
How is mental capacity determined?
It can be difficult to appropriately ascertain whether a testate is – in that very moment – capable of signing such an important document as a will, regardless of whether damaging physical or neurological conditions are involved. Legally, if the testate follows the will-signing process faithfully and procures the proper witnesses and signatures, they have fulfilled their role and the resulting documents will hold up under scrutiny.
The law does protect against external influence, but "mental capacity" can be tough to define on a universal level. A person with dementia is completely and legally allowed to sign a will. However, after they have deceased, it still may be the case that beneficiaries – or those left out of the will – claim that incompetence or incapacity was at play, thus sending the will into dispute. Nevertheless, if a power of attorney, present at signing, declares that the testate was competent and fully understanding of what they are doing, then the will is valid.
If you or someone you love believe mental capacity was in jeopardy during the will-making process, you may be eligible to contest the will. Speak with the experts at Gerard Malouf & Partners today to learn your rights and options.