Dementia & Wills: Understanding Testamentary Capacity
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Katie de Swarte
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Dementia or memory loss does not automatically mean lack of testamentary capacity
The contested wills and probate team at Osbornes Law represents clients involved in all types of disputes and dementia-related cases.
Memory loss and other dementia-related symptoms are increasingly a feature in the wills disputes we’re involved in. However, families must understand that the presence of such symptoms – and even a formal dementia diagnosis – does not automatically mean a loved one cannot make a will.
Recently, the will of an elderly woman was upheld by the court despite evidence of memory loss and other symptoms around the time she executed it.
Testamentary capacity and dementia
It’s a fundamental legal principle that a person making a will must have testamentary capacity to do so, otherwise it will be invalid. Furthermore, the long-standing legal test for testamentary capacity requires that a will-maker must have no mental disorder that ‘perverts’ their understanding and capacity to make a will [Banks v Goodfellow (1870)].
So where does dementia sit within this test? In simple terms, the presence of dementia, Alzheimer’s, age-related memory loss – or any other mental illnesses and conditions – does not, in and of itself, mean the sufferer lacks testamentary capacity. It is only when such conditions limit or restricts their understanding and mental capacity that an individuals ability to make a will may be called into question.
Where a dispute arises and the will is rational on the face of it, it will be for a claimant to prove the will-maker lacked capacity to make a will.
What happened in this case?
In Parfitt v Jones & Wilkes[2025] EWHC 1552, Mary Wadge died in September 2018 aged 85, leaving two daughters and a son (now deceased). Mary made her will in 2008.
Sadly, the relationship between the daughters, Vicky and Carolyne, broke down in 1994. Also, there was no genuine relationship between Vicky and her mother. Vicky – who had deeply wounded Mary – did not want to repair their relationship.
She was expressly excluded by Mary under the terms of her will, although she did leave 25% of her residuary estate to Vicky’s children.
Following Mary’s death, Vicky and her late brother’s wife (Svetlana) claimed the will was invalid on grounds of lack of capacity and want of knowledge and approval. They also claimed Carolyne had unduly influenced Mary in executing the will.
They argued that Mary had been exhibiting significant symptoms of “progressive dementia” for many years even prior to the making of the will, and that this accelerated from 2009 onwards. But Mary’s medical records revealed that though in 2009 she did experience some memory loss and confusion, it was not until mid-2013 she was formally diagnosed with dementia.
Interestingly, the judge rejected an expert clinical psychologist’s opinion that Mary lacked testamentary capacity because it was “inadequately reasoned and evidenced” (other than that she had memory impairment in 2008). The judge pointed out that a degree of memory impairment is still capable of being consistent with testamentary capacity.
He concluded that Mary had understood the nature of what she was doing in making a will; and further, she was “positively scrupulous” in identifying those who might reasonably expect to be provided for in the will.
The judge also pointed out that a diagnosis of dementia a little more than two years after the will was made can hardly support a conclusion of incapacity at an earlier time. Rather, the question was whether Mary had testamentary capacity at that time. On the evidence, Mary’s memory problems in 2008 did not deprive her of testamentary capacity.
As for the accusation of undue influence on Carolyne’s part – Mary gave instructions for her will, in person, to her bank (HSBC) and the will was drafted by the bank’s solicitors. Carolyne was with Mary at that meeting but the judge did not accept she exerted a controlling influence.
It was regrettable that no capacity assessment for Mary was carried out – something HSBC and its solicitors ought to have at least considered at the time. Had there been a capacity assessment, expensive and upsetting litigation could well have been averted.
Absent a capacity assessment, the judge was satisfied on the evidence that Mary did have testamentary capacity. In fact, he appeared somewhat irritated at Vicky and Svetlana’s claim to the contrary.
He said: “It is rather unsavoury and disrespectful to the dead to advance what I regard as a groundless case that a clearly capable testatrix lacked testamentary capacity”.
What does this mean?
At Osbornes, we understand that legal matters involving wills and capacity can be deeply personal and complex. Whether you’re seeking clarity, resolution, or protection of your rights, our dedicated team offers expert guidance with empathy, discretion, and a proven track record of success. If you need specialist advice in a wills dispute or you have concerns about a loved one’s mental capacity to make their will, it is important to speak with an experienced solicitor as early as possible. Contact our expert contested probate solicitors at Osbornes Law by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811
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