For any will to be legally binding, its author must have (or be deemed to have had) the ability to understand the nature and effect of their will at the time of it’s writing. The capacity to understand the nature and effect of a will at the time of writing is referred to as ‘Testamentary Capacity’.
The same applies where an individual is looking to amend an existing will. He or she must be deemed to have testamentary capacity in order to make such changes in a legally binding manner.
Testamentary capacity is therefore determined by an individual’s ability to understand the nature and the effect of their will at the time that the will is made. In the vast majority of cases where the integrity of brain function is not in question, there is no need for an individual to undergo formal assessment of their testamentary capacity. However, where further evaluation is required in order to establish testamentary capacity, Clinical Neuropsychologists are arguably best placed of all clinicians to perform this type of evaluation and to provide expert opinion.
Having a diagnosis of dementia or any other condition affecting your thinking ability does not automatically negate your ability to write a legally binding will. The testamentary capacity of an individual with dementia will depend on a number of matters including:
- How long they have suffered with dementia.
- The severity of their cognitive losses.
- The type of thinking difficulties they experience (i.e. whether these relate to memory or language function).
- The level of complexity of their estate.
In some cases, it may be possible to facilitate the testamentary capacity of an individual via the adoption of strategies to support their function in the affected area of thinking.
Some people get help from friends or family or simply write their will themselves. The advantage of seeking professional advice is that a proper capacity assessment can be undertaken at or close to the time that the will is written, forming a safeguard against any future challenges on grounds of incapacity.
Where wills are challenged on grounds of an absence of testamentary capacity, Clinical Neuropsychologists may be called upon to provide an expert opinion on a retrospective basis. In such cases, Clinical Neuropsychologists integrate specialist knowledge of the symptoms and course of brain diseases with details / circumstances of their client, to infer the likelihood of testamentary capacity at the time the will was written.
Decline in thinking ability occurs (along with graying hair and loss of physical agility!) as part of the normal aging process. We, as Clinical Neuropsychologists, are acutely aware of this and know precisely which aspects of our thinking do and don’t decline with age, as well as how much change in thinking ability we would expect to see as an individual ages.
Unfortunately, not all changes in memory and thinking ability are attributable to a normal aging process. In a majority of cases, individuals or their loved ones, become aware of and concerned about loss of memory ability long before their symptoms are apparent to the non-specialist.
Neuropsychological assessments are among the most sensitive means of differentiating between memory loss that is attributable to normal aging and memory loss representing the early stages of dementia. Brief cognitive screening tests, comprising questions about the date, current prime minister and the recall of objects, are known to be insensitive to very early stage dementia, particularly (although by no means only) in cases where thinking difficulties do not relate to memory. If you remain concerned about changes in your thinking ability after visiting your GP and undergoing basic cognitive screening, you can request that a referral be made to a Clinical Neuropsychologist for fuller evaluation of your thinking abilities.
There are many advantages of evaluating memory and thinking concerns at any early stage. In some cases, treatments are available to slow down the progression of thinking difficulties. In most cases, patients and their families benefit greatly from having a clear understanding of what is causing the change in memory, what can be done about it and how best to manage such changes. Early evaluation also allows time for patients and their families to address relevant legal matters such as granting power of attorney or the writing of a will, prior to the point at which testamentary capacity might be called into question.
There are a range of local services available to individuals suffering with memory difficulties and dementia. Early evaluation and diagnosis of memory change allows the patient to exercise individual choice/preference in relation to their ongoing management and care needs.
If you have concerns about your own memory abilities of the abilities of a loved one, phone to arrange an initial consultation or neuropsychological evaluation.