By David Thomson, 7 December 2020
Memory loss associated with dementia and Alzheimer’s disease could affect the validity of your will, says David Thomson, Senior Legal Adviser for Sanlam Trust. He adds that while there is a genetic predisposition to Alzheimer’s which puts individuals who have a family history of dementia at higher risk, the risk can be reduced by controlling chronic conditions better and maintaining a good exercise regime.
As it is not guaranteed that individuals who have a family history of dementia will get Alzheimer’s, it will do well to consult an estate planning specialist to consider different options to ensure their estate ends up in the right hands should they develop Alzheimer’s. “There are scenarios, including court cases, where wills have been contested because the deceased was suffering from a mental impairment such as Alzheimer’s disease at the time of making and signing the will. Sometimes their mental competency at the time the will was drafted or amended is called into question.”
Thomson sketches a few scenarios of how Alzheimer’s can affect your will.
“I have never drafted a will and now I have Alzheimer’s disease. What should I do?”
Whether or not you are legally capable of making a will, depends on your medical condition at the time of signing your will. By law, every person aged 16 and above can make a will, unless at the time of doing so they are mentally incapable of understanding what they are doing. This means that relying on your ‘moments of lucidity’ may not rule out the risk of a court declaring your will invalid should someone lodge an objection. In this case, your estate will be distributed according to the law of intestate succession which may (depending on the situation) result in your estate being distributed in equal parts between your spouse and your children (or other family members in the absence of a surviving spouse and children).
“I have made a valid will but I’m now suffering from Alzheimer’s disease. What should I do? Can I review my will, and would the review be valid?”
Your will remains valid. It is not advisable to change your will at this stage. However, every situation is different. The recent Durban High Court judgment in the matter of Scott refers. The judge ruled against the appointment of a curator despite Mr Scott suffering from a form of memory loss. The court was of the view that his condition was not so severe that he was incapable of conducting his own affairs. The application was brought by some of his own relatives and failed.
In the case of Scott, he would be able to execute a last will and testament. Older or vulnerable people are sometimes influenced by supposedly helpful persons who befriend them and they then feel obliged to reward these people. If you do want to make amendments to your existing will, an heir or interested party (for example, a family member) may lodge a court application to have the amendments declared invalid on the basis of your disease or ‘undue influence’ in the form of duress by one or more persons.
If you wish to dispose of some of your property whilst you are alive, or in a different manner to that of your valid will, you may consider making an outright donation to the person or persons you have in mind. Thomson recommends consulting a special type of lawyer, called a notary public to ensure the legal formalities are complied with and so that he or she can attest your fitness to execute a deed of donation. However, if you are still capable of making a valid donation, Thomson says you can revoke your previous last will and testament instead and execute a fresh one.
“When I was diagnosed with Alzheimer’s disease, I gave my child power of attorney, allowing him to sign documents on my behalf when I am no longer able to do so. Will the power of attorney remain valid when I’m in a full-blown stage of the disease?”
No, it will not. This is a difficult situation, as South Africa’s legal system does not recognise the ‘continuing power of attorney’ used in some other countries. Strictly speaking, the power of attorney will cease when you become incapable of making decisions yourself. Your family will have to submit an application for curatorship to the High Court. For all practical purposes, the holder of the power of attorney may usually continue to act in your interests, particularily if this person is already well known to third parties and they are performing routine tasks such as paying your monthly accounts for you. The main reason for not permitting an enduring power of attorney is that if the principal is not mentally capable of revoking the power (or limiting it), how can he or she prevent the appointed attorney from abusing the privilege bestowed on him or her?
“If you are at a high risk of developing Alzheimer’s disease, an inter vivos trust may be an appropriate instrument to provide protection for your assets during your lifetime, as well as protection for your partner and heirs. Once you reach the stage where you are unable to manage your own affairs, your trustees will do that for you in a seamless manner,” says Thomson.
He recommends seeking advice from a financial planning professional who will be able to devise strategies to protect your assets and keep an eye on potentially inappropriate amendments to your will. Furthermore, your last will and testament should nominate a professional executor to properly wind up your estate. Should you embark on the trust route, Thomson says you should engage the services of a professional trustee.
“Your financial planner will understand the duties of the executor and trustee and will therefore be able to ensure your interests are protected.”