For many Western Australian families, the conversation about updating a Will happens late, sometimes too late. When a loved one has been diagnosed with dementia, or where their cognitive decline is already apparent, the question of whether they can still legally update their Will becomes one of the most consequential a family can reckon with.
The law in this area is both precise and frequently misunderstood. Here is what you need to know.
The legal test is testamentary capacity, not diagnosis
A diagnosis of dementia does not automatically remove a person’s legal right to make or update their Will.
In Western Australia, the relevant standard is testamentary capacity, a legal test with its own definition, independent of any medical label. To have testamentary capacity, a person must understand:
- the nature of making a Will and its effect;
- the extent of the property they are disposing of;
- the claims of people who might reasonably expect to benefit; and
- must not have been affected by any disorder of the mind or insane delusions, that poisoned their affections towards any person they should consider providing for in their will.
A person with early-stage dementia may meet this test on a given day, whilst a person without dementia may not. Crucially, capacity is assessed at the moment the Will is executed, not across a lifetime, and not by diagnosis alone.
Capacity can fluctuate – and that matters
For those diagnosed with dementia, cognitive capacity can vary significantly from day to day, and even hour to hour. This means that a person who lacks capacity on one occasion may have it on another.
Where capacity is uncertain, the timing and circumstances of execution become critically important. A prepared inheritance lawyer will ensure that proper steps are taken to assess and document capacity at the time the Will is signed, reducing the risk of a future challenge considerably.
Common misconceptions families carry into our office
“My parent has dementia, so they can’t change their Will.” Not necessarily. The legal question turns on capacity at the time of execution and the nature of the Will and property it is disposing of, not by the mere fact of a diagnosis. Many people in the early stages of dementia can and do retain full testamentary capacity.
“If a doctor signs off, the Will is safe.” Medical evidence is valuable, but not conclusive. Courts assess testamentary capacity against a legal standard that considers a variety of factors, not just medical evidence. Therefore, whilst a doctor’s opinion is valuable evidence, it is not a guarantee of testamentary capacity.
“We can update the Will informally while we wait for an appointment.” The notion of updating a Will ‘informally’ is a misunderstanding of the law. Any Will and/or Codicil that does not meet the formal execution requirements under the Wills Act 1970 (WA) may not be valid. Handwritten notes, verbal instructions and unsigned documents generally carry little legal weight. In some cases an informal document can be proven as a valid Will – however this process is extremely expensive and uncertain. Best not to risk it.
“If the Will is challenged later, there’s nothing we can do now to protect it.” There is a great deal that can be done. Thorough contemporaneous records, including medical assessments, file notes of the lawyers taking instructions and evidence of the person’s real understanding are among the strongest protections available against a future challenge.
What about undue influence?
Testamentary capacity and undue influence are separate legal doctrines, though they often arise together in challenged estates.
Even where capacity exists, a Will can be set aside if it can be shown that the testator was subject to undue pressure from a family member, carer or other person that overrode their independent wishes. Vulnerability to undue influence can increase as cognitive decline progresses, which is why the circumstances surrounding execution often matter as much as capacity itself.
Acting early protects everyone
The clearest advice we can offer is this: do not wait.
If a loved one has received a dementia diagnosis, or if there are early signs of cognitive change, the time to review and update estate planning documents is now, while capacity is clear and documented, and while the risk of challenge is lowest.
Delaying never helps. The best time to prepare your Will was yesterday, but the second best time is now.
We can help you navigate the right way forward
At Solomon Hollett Lawyers, we guide families through some of the most complex and sensitive moments in inheritance law including matters where capacity, vulnerability and family dynamics intersect.
If you have questions about a loved one’s capacity to update their Will, or if you are concerned about the validity of an existing document, we are here to help you find a clear course forward.
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Our team are here to guide you. Take the first step towards resolving your legal matter in a smart and efficient way with Solomon Hollett Lawyers.
