Can a person with Alzheimer's or dementia make a will?

Question

José Manuel Alburquerque · Accepted Answer

Yes, if at the time of signing they understand what they are doing and decide freely. The diagnosis does not in itself prevent them from making a will. What counts is their condition on that day. The notary assesses it and may ask two doctors to certify it in the will itself. The sooner the will is made, the lower the risk of it being challenged later. What the notary checks That the person knows they are deciding what will happen to their assets when they die, what they own and who their relatives are. That the decision is their own, free from pressure from those who stand to benefit. If in doubt, the notary may ask two doctors to examine the person and certify that they are able to make a will at that moment. Their opinion is recorded in the will and they sign it together with the notary. If the notary considers that the person lacks capacity, the will is not authorised. If a judge declared the person incapable If the person was declared incapable by a court before the 2021 reform and that judgment has not been reviewed, they can only make an open will before a notary. It must be made during a lucid interval and with a certificate from two doctors accepted by the notary. From 4 February 2027 this rule disappears and it will always be the notary who decides whether to call in the doctors. If since 2021 the judge has only put a support measure in place, such as assistance (“asistencia”), the general rule already applies today. Tips Make the will in the early stages of the illness, when there is no doubt about capacity. Ask the doctor for a report on the person's condition at that time and keep it. Make sure the future heirs are not present when the person explains to the notary what they want. Avoid a handwritten will. No notary checks capacity when it is made and it is easier to challenge. If the person wants to leave something to the care home or to someone who cares for them under a contract, this is only valid in an open will made before a notary or in a succession agreement. If the person can no longer make a will, any will they made earlier remains valid. After the death, anyone who would benefit from setting the will aside can challenge it within four years of learning of the ground for doing so. They must prove that the person lacked capacity, because capacity is presumed. This applies if the estate is governed by Catalan law. Under the Spanish Civil Code (“Código Civil”) there is no two-doctor rule. The notary assesses capacity and must help the person express their wishes with whatever support they need.