Can You Contest The Will Because of Dementia? A Deep Dive into the Implications

Contesting a will is a sensitive and intricate process, especially when challenging its validity based on the mental capacity of the testator. Dementia, a progressive decline in cognitive function, is one condition that raises questions about a person’s ability to make a legally binding will. This article delves into the implications and considerations surrounding the contestation of a will on the grounds of dementia.

The Legal Requirement of Testamentary Capacity

For a will to be valid, the person making it (the testator) must possess ‘testamentary capacity.’ This legal principle demands that the testator:

  • Understands the nature of making a will and its implications.
  • Recognizes the extent of the assets they are bequeathing.
  • Comprehends and appreciates the claims to which they ought to give effect (e.g., familial responsibilities).

If dementia impairs any of these understandings, the will can potentially be challenged.

Dementia and its Impact on Testamentary Capacity

Dementia affects individuals differently. Some may maintain periods of clarity, while others might face rapid cognitive decline. It’s essential to differentiate between having a dementia diagnosis and lacking testamentary capacity. Not all individuals with dementia are incapable of making a will.

Evidentiary Challenges

Contesting a will on dementia grounds requires evidence:

Medical Records

A history of dementia diagnosis, treatment, and progress can provide insights into the testator’s mental state.

Witness Testimonies

Individuals who interacted with the testator during the will’s drafting can offer crucial observations. This includes both the lawyer who helped draft the will and non-professional witnesses.

Timing of the Will

A will made shortly after a dementia diagnosis, during a known period of cognitive decline, may be viewed with more scrutiny than one made earlier.

The Role of Legal Counsel

When an individual with dementia decides to draft or amend a will, it’s vital to involve legal counsel. An experienced lawyer can:

  • Evaluate if the individual has moments of lucidity to express their genuine wishes.
  • Ensure that all steps are taken to validate the testator’s capacity, such as obtaining a doctor’s assessment.
  • Protect the will from future challenges by documenting the entire process thoroughly.

Potential Outcomes of a Challenge

If a will is successfully contested on the grounds of dementia:

Previous Will

The prior will, if any, might be reinstated if it was made when the testator had capacity.

Intestacy Rules

If no prior will exists or if all versions of the will are invalidated, the estate may be distributed according to the region’s intestacy laws.

The Importance of Early Estate Planning

To avoid potential disputes, early estate planning is crucial. By drafting a will before any cognitive decline, one can reduce the chances of a contestation based on mental capacity. Regularly updating the will, especially after major life events, can also help in reflecting the testator’s genuine wishes.

Undue Influence vs. Dementia

While dementia revolves around the testator’s capacity, undue influence focuses on external manipulations. If an individual with dementia is coerced into changing their will under someone’s influence, it brings another ground for contestation. Differentiating between a decision made during a lucid interval and one made under undue influence is crucial.


Dementia, with its profound impact on cognitive abilities, can introduce uncertainties in the testamentary process. However, a dementia diagnosis alone does not automatically negate a person’s ability to draft a valid will. Contesting a will based on dementia requires careful navigation of legal processes and substantial evidence.

For those with a dementia diagnosis or their loved ones, the key lies in proactive estate planning. This approach, coupled with the guidance of legal professionals, can help in creating wills that genuinely reflect the wishes of the testator and stand resilient against potential challenges.