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When taking instructions about a Will or Codicil, and when these documents are signed, Solicitors have to be satisfied the client has the capacity to make a Will – this is called having testamentary capacity.
If the person making the Will does not have capacity to do so for themselves, it will not be legally valid. Where there is doubt about a person’s capacity to make a Will, we can help with an application to the Court of Protection to make a Will on that person’s behalf. This is known as a Statutory Will.The following people can apply to the Court of Protection to make a statutory will:
- Someone who has been appointed by the Court as a Deputy
- Someone named as a beneficiary in the person’s existing will
- Someone who would inherit under the Rules of Intestacy if no will has previously been made
- Dependants of the person who has lost capacity
- Attorneys appointed under a registered Enduring or Lasting Power of Attorney
- Someone authorised by the Court of Protection
Some people who lack capacity to make many decisions for themselves will still have testamentary capacity. However, where someone wishes to make or change their will and there is any question over their testamentary capacity, it is necessary to obtain a medical report. It must be clear that the person:
- understands what they are doing; and
- has an understanding of who they are providing for, and a good idea of the value of the assets they are bequeathing.
Where this is case, our Wills team can help to draft a will that will minimise Inheritance Tax, and give maximum benefit from the assets.However, many people put off making a Will until later in life, and unfortunately illness or accident can mean that some lose testamentary capacity before they have the chance to do so. In other cases, the person has made a will before losing capacity, but circumstances have changed: for example, the appointed executor or one or more of the beneficiaries may have died, or an asset bequeathed may no longer belong to the person’s estate.It is extremely important to be clear on matters of testamentary capacity. The Wills of people who lack capacity are likely to be more open to challenge, and for the beneficiaries this can be costly. Contested Probate proceedings can be lengthy and expensive.Where someone’s testamentary capacity cannot be established, a statutory will could be a solution to the problem. In some cases a statutory will can be very beneficial. It can ensure that provision is made for dependents or loved ones who may not inherit if there were no will, for example. They can also help to minimise the amount of Inheritance Tax paid.We can offer advice and help you to make a statutory will application to the Court of Protection if you are eligible to do so.
How long will a Statutory Will application take?
Sadly, applications to the Court of Protection to make a Statutory Will can take a long time, particularly if there are disagreements between members of the family, and/or anyone else who is named as a beneficiary in an existing Will.This means it is worth taking advice and weighing up the options before making a statutory will application. Before helping you to make the application to the Court of Protection, we can offer advice that will help you to work out whether a statutory will is necessary.
Find out more about making a Statutory Will
If you would like to talk to a specialist Solicitor about making a Statutory Will for someone, contact Catrin Lloyd or Sharon Woodward on 0800 138 0458.