If your loved one is no longer able to deal with their personal and financial affairs, we could help you make a statutory Will on their behalf.
If your loved one is unable to handle their own personal and financial affairs, you may be able to write or change a Will on their behalf. This is known as making a statutory Will, and it will apply when someone does not have the mental capacity to write or update a Will themselves.
Anyone can apply to make a Will on behalf of a person who is lacking mental capacity. But you must get the Court of Protection’s approval before the Will can become legally binding.
You should only apply for a statutory Will if it is absolutely necessary and in the best interest of the person who lacks capacity. This could apply if the individual has:
A statutory Will could also be applied for on the basis of tax purposes. In these instances, it would need to be proven that any changes made would be in the best interest of the individual, rather than any beneficiaries.
When deciding whether to approve your statutory Will application, the courts will consider:
The Court of Protection will also take into account the views of anyone who cares for the individual in question, as well as consulting their attorney or deputy where these are in place.
There are four key stages involved in making a statutory Will:
Applying for a statutory Will can become complicated, but a solicitor can help you through the process. They will be aware of what your application should include to give it the best chance of court approval, so you’ll have the reassurance of knowing an expert is by your side.
Under the Mental Capacity Act 2005, an individual is considered to lack capacity if they are unable to make their own decisions. This could be due to a serious brain injury or a degenerative disease like Alzheimer’s.
If you’re thinking about applying for a statutory Will, you’ll need to judge whether the individual understands:
It’s important to note that someone who has lost the ability to manage their finances may still have the capacity to make a Will. This is why it’s important to seek legal advice before starting the application process.
There are strict guidelines surrounding statutory Wills, and the Court of Protection will need to approve of any terms set out in the document. This will also apply if you’re an attorney or court-appointed deputy.
Some examples of decisions that would need to go through the courts include:
Ultimately, you will need to be able to prove to the court that the new Will acts in the best interests of the person in question.
The Court of Protection seeks to act in the best interests of the person who is lacking mental capacity, but there are other factors they will consider too. For example, if a new statutory Will could negatively affect existing beneficiaries, they will have the option to contest the proposals made.
Challenging a statutory Will could also be necessary if you believe that the individual involved has capacity to write their own Will, or if you think the new proposals go against what they would have wanted.
Our solicitors are experienced in handling disputes related to Wills and probate. They can help you navigate the process of contesting a Will, taking some of the pressure off your shoulders.
We understand that making decisions on behalf of a loved one without mental capacity can be extremely difficult emotionally as well as practically. Our Wills, estate and probate solicitors know this, too.
When you get in touch with us, our friendly and compassionate advisors will speak to about your situation. And if we think we can help, we’ll ask if you’d like to be put in touch with one of our dedicated solicitors.
There will be no pressure to go forward after speaking to us, and there will always be the option to call us back.
To find out more, get in touch with us by calling the number on the top of the screen or by requesting a callback. We also have an online claims form if you’d prefer to reach us this way.
Whenever you need us, we’re here to help.
Learn more about this area of the law and what you need to know: