Skip to main content

Can a will be made for someone who lacks mental capacity?

Share

A statutory will is a will which is made on behalf of a person who does not have the mental capacity to make their own.

The Court of Protection can order a statutory will to be executed on behalf of a person who cannot make the decision themselves but the court must be persuaded that it is in the person’s best interests.

This type of will is most common in cases where a person who lacks capacity has not made a will, or if there has been a major change in their circumstances since they last made a will.

The court will consider the person’s past and present wishes and feelings as well as other things that the person would be likely to consider if they were able to do so.

What is the process for making a statutory will application?

In order to make the application a number of documents need to be completed and sent to the Court of Protection along with an application fee. The following information is required:

  • A copy of the proposed draft will;
  • A copy of any existing will;
  • Details of the person’s family;
  • A statement explaining why the person might be expected to provide for the proposed beneficiaries following their death;
  • Details of the person’s current assets and estimates of income and outgoings which may affect the size of their estate;
  • Medical evidence proving the person doesn’t have the mental capacity to make a will.

People who are likely to be affected by the application must be notified and given a chance to respond. Any beneficiaries under a current will or anyone who would benefit if the person died intestate must be given copies of the application and supporting evidence.

The court may also appoint a solicitor or another person to act on behalf of the person who has lost mental capacity.

The parties then have an opportunity to agree the proposed will or to put forward a will in different terms, however if the parties cannot agree then there will need to be a court hearing.

The Court of Protection will assess the evidence and decide whether to make an order to execute a statutory will, and if so on what terms. Once a draft will has been approved the court will authorise someone to execute it on behalf of the person who has lost capacity. Statutory wills must be executed in a specific way and then must be sealed by the Court of Protection.

Urgent applications

It is possible to make an urgent application for a statutory will, for example, if the person is in very poor health and is not expected to have long to live. For these applications to be successful, additional evidence is needed about the person’s condition and why the application was not made sooner.

To find out more information about statutory wills please contact Laura Brereton on 01772 258321. Laura is part of Harrison Drury’s strong team of lawyers who provide the necessary legal help and support many individuals throughout the North West.


Questions & Answers

Leave a Comment

Leave a comment

Your email address will not be published. Required fields are marked *


x

Manage your privacy

How we handle your personal data

The General Data Protection Regulation (GDPR) gives you more control over how companies like ours use your personal information and makes it quicker and easier for you to check and update the information we hold about you.

As part of our service to you, we will continue to collect, use, store and share your data safely and securely. This doesn’t require any action on your part.

For more detailed information view our Privacy Hub