The advice you need if your loved ones lack the mental capacity to make a will
If someone lacks the capacity to make a Will, it will not be legally valid. We can help you to apply to the Court of Protection to make a Statutory Will, so that your loved one’s best interests are looked after.
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What is a Statutory Will?
A Statutory Will is created by the Court of Protection when a person no longer has the capacity to write a Will and decide things themselves. If you are able to write a will on behalf of someone close to you, this ensures that the estate is distributed to the your loved one's wishes. The Court of Protection is more likely to grant a Statutory Will if the person has never made one before, or if there has been a serious change in circumstances and a Will needs to be modified. Without a Will, an estate will be distributed to the next of kin.
As long as you are over the age of 18, you can apply to the Court of Protection to make a Statutory Will if you are:
- An appointed Deputy
- An appointed Attorney
- You are 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
- A dependant of the person who has lost capacity
- Someone authorised by the Court of Protection
To make an application the process involves completing various forms and making a statement to support the will. You should provide a family tree to the Court of Protection so that they can assess the beneficiaries and determine who could be left out. Our team will help you through the process and make sure that you fully understand each aspect of the application.
Making a Dispute
It is possible to contest a Statutory Will if you believe that the terms do not meet the wishes of the deceased, or if the best interests of your loved one are not being met by a deputy. In many cases disputes can be managed through mediation and dealt with through discussions. In other instances disputes may have to be taken to court. If you need advice on a dispute our solicitors can help you to determine if you or someone else has a claim and how best to approach this.
How Long Does an Application Take?
Statutory Will applications can take a long time and each case varies depending on specific circumstances. For example, it can take longer if there are disputes over the Will between family members, or anyone else who is named as a beneficiary and it may have to be taken to Court. Our team has great experience in these cases and can help you to determine whether you need to make a Statutory Will and what your best options are.
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How can Switalskis help me?
Our skilled Wills team can help to draft a will that will minimise Inheritance Tax, and give maximum benefit from the assets. 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. In some cases a statutory will can ensure that provision is made for dependents or loved ones who may not inherit if there were no will, for example. 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.
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, or send us a message through our website.