According to the Alzheimer’s Society around 850,000 people in the UK have dementia, with this figure set to rise to more than 1 million by 2025 and more than 2 million by 2051. The organisation says that 225,000 people will develop dementia this year – that’s one roughly every three minutes.

The possibility for a disputed Will increases when there is a mental health issue, so, it is vital for anybody with assets – no more matter how small – to keep an up-to-date Will in place so that their wishes are clear in the event of mental incapacity or death. Read on for our top tips on avoiding contested probate if dementia or mental health issues are a factor for you.

Seek advice from a doctor

If you have been diagnosed with dementia, you should seek advice from a doctor regarding whether you have sufficient mental capacity to make a Will. Doctors, social workers and dementia specialists can help assess a person’s mental capacity to determine whether they are able to make decisions about their finances, care and medical treatment.

The earlier you seek help and advice in this respect, the more likely you are to ensure that your wishes are met if you lose capacity or when you die.

Understand testamentary capacity

Your doctor – perhaps together with a dementia consultant – will ask you and your family questions to help determine whether you have sufficient ‘testamentary capacity’ to change or make a Will.

This means they will consider the question of whether you have the ability to understand the process and implications of making a Will and whether you understand the extent of your assets and who they might provide for at the time of your passing.

There are many different types and stages of dementia; ultimately the question of whether you have sufficient testamentary capacity will depend on whether it is thought that you are able to fully comprehend the details and implications of any Will you make or alter.

Seek advice from a Wills Solicitor

If your doctor determines that you have sufficient mental capacity, you should instruct a Wills solicitor at the soonest opportunity.

Even if you are deemed to have testamentary capacity, if your Will is not properly written, signed, witnessed and stored, it may be lost, hidden, considered not legally-binding or become vulnerable to a contentious probate claim.

You should always ensure that the solicitor concerned specialises in drafting Wills as this can further reduce the possibility for confusion or contention.

Make a Lasting Power of Attorney

Another important step you can take to reduce the possibility of a Will dispute or contested probate after your passing is to grant power of attorney to someone who can act on your behalf once you have lost mental capacity to do so yourself. You should do this as soon as possible, as it is not possible to make a Lasting Power of Attorney once you are deemed to have lost mental capacity.

There are two types of LPA: a property and financial affairs LPA to determine who can make decisions regarding your assets, bills, pension, property and more, and a health and welfare LPA to determine who can make decisions about your daily care and medical care and life-sustaining treatment.

An LPA must be registered at the Office of the Public Guardian (OPG) before it can be acted upon and only comes into effect once you are deemed to have lost mental capacity.

Making a property and financial affairs LPA may help reduce the possibility of contested probate by clarifying roles, responsibilities and the financial interests of testators and their beneficiaries.

Know the Mental Capacity Act

The Mental Capacity Act is a piece of legislation designed to protect the interests of those who, for whatever reason, lack mental capacity to make their own decisions related to their finances, care and medical treatment. In the event that an individual lacks capacity to make a decision, the Act states that any decision made on their behalf must be in their best interests and not determined by the interests of others.

The Office of the Public Guardian advises that under the Mental Capacity Act if you can answer ‘no’ to any of the following questions, the person being assessed lacks mental capacity:

• Can the person understand information relevant to the decision, including understanding the likely consequences of making, or not making the decision?
• Can the person retain this information for long enough to make the decision?
• Can the person use and weigh the information to arrive at a choice?
• Can the person communicate their decision in any way?

Contested probate solicitors

Oratto’s contestious probate solicitors specialise in this difficult area of law, and bring authority, sensitivity and expertise to every case they take on. We can connect you to the right lawyer for your situation, even if you would just like a one off consultation. Just call our National Helpline on 0845388 376 or use our contact form to request a call-back.