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Did you know that a court can be asked to make a Will for someone who lacks capacity?

01 October

Did you know that a court can be asked to make a Will for someone who lacks capacity?

By John Breeze

As Solicitors we always advise our clients to plan for the future, including by making a will, which it is important to keep under review so that it can be updated as family and financial circumstances change.  The default legal provisions of intestacy may be unsuitable, while leaving behind an out-of-date will can often be even worse.

But what if someone cannot make a will or update their out-of-date will, because they do not have the required mental capacity?

Although a Lasting Power of Attorney can authorise a trusted relative, friend or professional adviser to manage finances and make decisions, it is not possible to give anyone else the power to make a will for you.

Thankfully, a will can still be made or updated by the Court of Protection.  The Mental Capacity Act 2005 allows for concerned relatives or attorneys to apply to the Court, where a specialist Judge will make a decision about what the new will should contain, based on the “best interests” of the person in whose name the will is being made.

When making a best interests decision, the Court will take into account family relations and friendships, as well as any known wishes and feelings of the person for whom the will is being made.   The contents of previous wills or a known track-record of gifting will hold clues.

In some cases, it may also be possible for the person for whom the will is being made to engage in the process by being asked their views, if given appropriate help and support.  The Court will ordinarily ask the Official Solicitor to independently represent the interests of the person for whom a will is to be made, which will involve an independent solicitor conducting a home visit as part of the process.

At the end of the process the Court will decide whether a will or updated will should be made and direct a solicitor to draw up its terms.  The resulting will is known as a “Statutory Will”. 

If the Court is satisfied that it was appropriate to make an application, the costs of the parties involved in the proceedings will normally be paid in part or in full from the funds of the person for whom the statutory will is made.

Bell & Buxton specialise both in Court of Protection proceedings and will-making and so are well placed to represent any party involved in a statutory will application.

John Breeze