By Juliet Phillips-James, Director, Gomer Williams (as featured in the Llanelli Star)
Q: My brother has recently been diagnosed with Alzheimer's. Unfortunately he has never made a will. He has never had much involvement with his children and has always said that he did not want to leave the majority of his assets to them. If my brother was to make a will now, would it be valid or has he left it too late?
A: It all depends on how advanced your brother's dementia is. Being diagnosed with dementia is not necessarily a bar to someone making valid will.
There are varying degrees of dementia. Your brother may be at the early stages and therefore quite possibly he has sufficient mental capacity to give instructions for and to execute a will.
It would, in the circumstances, be best to get a solicitor to draw up the will as they will ensure the correct procedures are followed and make file notes to evidence your brother's understanding and wishes and feelings.
They will also probably want to obtain a doctor's letter to confirm your brother has the necessary mental capacity to make a valid will.
If your brother is deemed not to have sufficient mental capacity, he will not be able to make a will. No one can make a will on his behalf, except for the Court of Protection, who may in certain circumstances make a statutory will, and you would need to seek legal advice about this.
When deciding if someone has mental capacity, the court looks at the following criteria:
The person must understand the nature of making a will and its effect;
The person must understand the extent of the property they are giving away.
The person must have capacity to understand who they are giving the property away to.
It is important to get a medical opinion in writing confirming your brother has capacity as if the will ever becomes contested on the ground of lack of testamentary capacity it will provide key evidence to the court on the issue.