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Making a Will for someone who lacks mental capacity

Generally speaking, someone who wishes to make a Will must have the requisite mental capacity and understanding to make a valid Will. 

Otherwise, their Will is very easily open to challenge after they have died. 

However, there is a procedure whereby someone can make a Will on behalf of someone who lacks mental capacity – through an application to the Court of Protection. 

These Wills are known as Statutory Wills. 

Statutory Wills

A Statutory Will can only be made when someone lacks the mental capacity to execute a normal Last Will for himself. 

A Statutory Will is every bit as effective as if the person had full mental capacity and made the Will themselves. 

They are made by the Court of Protection under the Mental Capacity Act 2005. 

How to make a Statutory Will

An application is made to the Court of Protection. 

The Application will contain:-

  1. A statement as to the testamentary capacity of a testator. (NB – someone may not have capacity to manage their own financial affairs, but may have capacity to make a Will – the tests are different).
  2. The grounds for changing the existing last Will (if there is one). (Generally speaking, the Court is happier to make a Statutory Will when the testator has never made a Will or there has been a majority change in circumstances).
  3. Details of any beneficiaries who would be affected by the change in the existing Will / intestacy.
  4. Financial circumstances of the impaired person, as well as the arrangements currently made for their care.
  5. Details of who forms part of the family and what the nature of those relationships are.
  6. A draft of the proposed Statutory Will.

Who can Apply to make a Statutory Will?

Obviously, if the testator lacks mental capacity, they will also not be able to do the Court Application themselves. 

Therefore, it is usually an Attorney under a Lasting Power of Attorney (LPA) who would make a submission to the Court of Protection to have a Statutory Will drawn up and approved. 

If the unfortunate person who has lost capacity didn’t make an LPA before they lost capacity, a Deputy is usually appointed by the Court to make decisions on the testator’s behalf. 

Anyone can be a Deputy – a friend, a family member or a professional person such as a solicitor. 

We have partners in Druces LLP who regularly act as professional Attorneys and Deputies for clients. 

In addition, anyone who was a beneficiary under an existing Will is also entitled to make an application to the Court for a Statutory Will. 

How does the Court decide about a Statutory Will?

Under the Mental Capacity Act 2005, anything done on behalf of someone who lacks capacity must be in the person’s best interests. 

Therefore, once the application is made to Court, the judge will appoint the Official Solicitor to look at the application from a completely independent perspective and make any representations to Court thought necessary in order for the Will to be fair to everybody involved. 

Those who could be prejudiced or affected in any way by the new Will are parties to the hearing and have a chance to make representations. 

The Court has the final say as to what the Will should say and everyone must abide by that decision. 

The Court will however consider:-

  • The testator’s past and present wishes and feelings, in particular, any relevant document made by the person when they had full mental capacity.
  • The testator’s best interests
  • The testator’s own views. They are encouraged to contribute to the decision making process, at whatever level of ability they may have.
  • Past and present wishes and feelings.
  • Views of relevant third parties as to their best interests.

Once the Will is approved by the Court, an order is then made allowing the applicant to sign the Will on behalf of the person lacking capacity. 

The Court is then sealed with the official Seal of the Court of Protection. 

This makes the Will a legally valid and binding document. 

 

If you have any further queries, please do not hesitate to contact either Helen Freely or Rachel Diedrich on 020 7638 9271.