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What should you consider if somebody without capacity needs to write or amend a Will?

Helping to care for someone who lacks capacity can be stressful and in terms of the legalities, potentially complex. However, problems can be exacerbated when someone who lacks capacity has not prepared a valid Will which provides for their estate after death. Our Lucy Mignot, Partner – Litigation & Disputes, is a specialist in handling Court of Protection proceedings and sets out here the key considerations when considering statutory Wills.

1. Are you sure they don’t have capacity?

Just because someone has been diagnosed with a condition such as dementia, it doesn’t automatically mean that they are unable to make their own decisions about their Will. There is a specific test to assess whether someone has capacity to make a Will. It may be that, with professional support, they can make those decisions for themselves.

2. Do they need to change their Will?

If there is an existing valid Will which is still appropriate for the person who lacks capacity, the answer is

no. However, if the Will is outdated because something has changed since the Will was made, or if there is no valid Will, a statutory Will may be necessary.

3. What is a statutory Will?

A statutory Will is a Will that is authorised by the Court of Protection and signed on behalf of the person who lacks capacity. The statutory Will must be in the best interests of the person for whom it is made.

4. How does the court decide what is in their best interests?

The court will look at all the relevant circumstances including the person’s past and present wishes and feelings, their beliefs and values, and the views of certain people close to them. It may be that a statutory Will is in the person’s best interests because it allows them to be remembered for “doing the right thing”.

5. Who can apply for a statutory Will?

If you are the person’s attorney or deputy, a beneficiary named under their existing Will, or someone who would inherit where there is no Will, you can apply for the statutory Will.

6. Will I have to go to court?

If no-one objects to the statutory Will then a court hearing should

not be necessary. If someone does object, (usually a beneficiary who is losing out), there will be a hearing and the court will hear evidence from both sides.

7. Who will pay the costs?

The costs of the statutory Will application are usually paid from the funds of the person who lacks capacity.

The process in preparing a statutory Will can be complicated and time-consuming but our specialist team can guide you through from start to finish.

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Our team is recommended by the Legal 500, the UK’s leading directory to the legal profession, as having in-depth knowledge in their field and providing clear and concise advice. Contact Lucy Mignot 01305 217303, for further advice about statutory Wills, or the legalities of helping to care for someone who lacks capacity.