Normally, many of us have New Year’s resolutions or a list of things we want to achieve in the coming year, but what about adding making a will to your list? Every day, wills are made by individuals to set out their wishes for their affairs and assets in the event of their death.
But what happens when a person lacks testamentary capacity to make a will? Many individuals lack mental capacity due to a variety of circumstances – having a disability, being the victim of an accident which has left them with a brain injury, or having dementia, to name a few.
When a person lacks mental capacity, an application can be made to the Court of Protection to authorise a statutory will on the individual’s behalf. Once the will is made it is considered legally binding. A statutory will can be a useful tool for providing certainty and clarity to a vulnerable person’s post-death estate. There are certain situations which necessitate a statutory will, such as when a previously estranged child has been excluded from a will, but the rift has since healed, and the child now provides to their loved one.
When applying to the court, the applicant should supply appropriate evidence to justify the proposed terms of the will are in the best interests of the vulnerable person. The court requires all potential beneficiaries to be notified of the application and be given an opportunity to object and participate in the proceedings. The Court of Protection will then consider:
- The terms of the proposed new will
- The extent of the vulnerable person’s estate
- The best interests of the vulnerable person
- The vulnerable person’s previous wills or codicils
- The vulnerable person’s past and current wishes, thoughts and feelings.
The Court of Protection will then appoint the ‘Official Solicitor’, to act as an independent third-party solicitor on behalf of the vulnerable person. The Official Solicitor’s role is to objectively consider the terms of the proposed will and to negotiate with all interested parties to reach an agreement on the terms of the will.
The application process for a statutory will can be costly. The costs of any application would be paid from the vulnerable person’s estate.
If an individual lacking mental capacity dies without making a will, their estate would be distributed according to the intestacy rules. A statutory will could make a huge difference to an individual who has lost mental capacity. It could prevent their estate from being distributed against their wishes and ensures that instead their assets go to the people they would want them to go to.