Making a Will when you, or a family member lack the capacity to do so

• Posted onMay 29, 2020

A normal Will is made by someone who is over the age of 18 and has mental capacity (testamentary capacity) to understand what it is they are doing, why they are doing it and the consequences of making a Will.

But what happens if you have not got the metal capacity to make a will?

Janine Guthrie, Chartered Legal Executive for WSP Solicitors Wills, Trusts and Probate team explores Statutory Wills and how they can help you in this situation.

What is a Statutory Will?

A Statutory Will is a Will that is authorised by the Court of Protection on behalf of someone        who is unable to make one themselves because they lack mental capacity to do so.

When is a Statutory Will necessary?

A Statutory Will is necessary where:

• There is no Will in place or the Will is “out of date” (it would normally have been updated to reflect their current circumstances – this could be where beneficiaries have died or property in the current Will no longer exists);
• Where there are high value assets;
• For tax planning purposes
• Where the value of the assets has significantly increased or decreased.

When should a Statutory Will be made?

A Statutory Will can be made provided that the incapacitated person is over the age of 18, however preparation for a Statutory Will can be started at 17.

How do you apply for a Statutory Will?

An application for a Statutory Will must be made to the Court of Protection.  The Court will require an application form, an information form, a mental capacity assessment form and a witness statement as well as supporting documentation including a draft of the proposed Will.

What will the Court consider in the application?

The Court will consider what is in the incapacitated person’s best interests and will consider:

• Past and present wishes, in particular any previous testamentary wishes that may have been made when the vulnerable person had capacity
• The beliefs and values that would be likely to influence the vulnerable person’s decision if they had capacity
• Other factors that the vulnerable person would be likely to consider if they were able to do so.

The Court will usually appoint the Official Solicitor to act for the incapacitated person so that they are properly represented.

How long does the process usually take?

Approximately 3-6 months from the point the application goes to the Court and depending on the Court’s workload and provided that the application is uncontested.

For more information, please visit our Wills, Trusts and Probate pages found here. You can contact Janine directly, or by filling out the form in the sidebar of this page. Alternatively, you can call us directly on 01453 847200.