5th Feb 2020

What are the steps if someone no longer has the capacity to make a Will?

For most people, making a Will is a simple process – but what happens if someone lacks the mental capacity to make one?

In these situations, making a Statutory Will – with the authority of the Court of Protection - can benefit someone who is unable to make their Will in the usual way.

How does it work?

An application to the Court must be made. This will ask for authority to be given to a specific person to execute a Will in a form agreed by the Court on behalf of the person who cannot do it for themselves.

The Court has lots to look at in such a complex situation, but its primary consideration will be whether the making of the Statutory Will is in the best interest of the person who lacks capacity.

 

Who can apply?

Any appropriate person. Attorneys and Deputies do not have the power to make Wills for the people they act for, they must apply to Court. But you don’t need to be an Attorney or Deputy to make an application, anyone can do it.

 

When can this be done?

Where a person has not made a Will, the Intestacy Rules will apply. This means their estate will be divided in a strict order made by law, which might not follow the person’s wishes. There are also strict rules regarding who can be appointed to administer the estate.

Even if a Will has been made, it is possible that it may no longer be appropriate.

 

Why might it be necessary?

Our circumstances can change or become complex. It may be that the person is estranged from a spouse, but not divorced, or has fallen victim to financial abuse from a member of their family. There may be a family member with a disability whose benefits require protection and would lose these were their share of the estate not put into a special type of trust.

In these cases, and others, it could be argued that division of an estate under the Intestacy Rules is no longer appropriate.

Perhaps the spouse, family or financial abuse issues outlined above apply where there is a Will - or there may be doubts over validity due to capacity, coercion or undue influence.

 

Dan Snedden is head of Court of Protection at Berwins 

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