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Even though a person may have lost the capacity to manage their financial affairs – this does not always mean they do not have the capacity to make a Will. So long as the person has ‘testamentary capacity’ – then a Will can be created in the normal manner.

However, when a person lacks the necessary capacity to make a Will it is still possible for a Will to be made for that person. Such a legal document is known as a Statutory Will.

Statutory Wills are made by an application to the Court of Protection.

Statutory Wills can also be used to save inheritance tax and to deal with all sorts of special family situations.

What is testamentary capacity?

For a person to be able to make a Will they must be able to understand what they doing and what their will is saying, the general value of assets their Will is to deal with (i.e. understand in general terms what property they are leaving) and the people they ought to consider providing for under their Will.

If a client’s financial affairs are under the control of the Court of Protection then a medical opinion has to be obtained as to whether or not the client has testamentary capacity. The doctor or consultant may charge a fee for this.

Making the Will

If the medical opinion is that the person has testamentary capacity – then a Will can be carried out in the normal manner – a copy of the completed Will is sent to the Office of the Public Guardian.

If the opinion is that the client does not have testamentary capacity the Statutory Will procedure has to be followed.

Who can apply for Statutory Will to be made?

The application for a Statutory Will can be made by any one of a wide group of people:

  • A Deputy appointed by Court of Protection or a person who has made an application for the appointment of a Deputy;
  • A beneficiary under an existing will or intestacy;
  • An attorney under a registered Enduring Power of Attorney or Lasting Power of Attorney; or
  • A person for whom the person lacking capacity might be expected to provide if he had the capacity to do so.

The application

The application comprises of a statement or statements supporting the terms of the proposed Will, plus a copy of the proposed Will. The Court has published detailed guidelines on what evidence needs to be submitted, and it what form, before an application can be submitted. It is vital that the correct procedures are followed and the appropriate evidence submitted.

Once submitted, the Official Solicitor will be asked to represent the interests of the person alleged to lack capacity as an independent third party. Any person affected by the proposed will is notified. It the application cannot be agreed by all parties then it may be necessary for a Court hearing to take place. Once the terms have been agreed then the Will is signed by the person who made the application.

At Kew Law we have the knowledge and the expertise to best advise you on the process of making a statutory will and the complex law surrounding them.

Please call our mobile friendly number on 033 33 22 1000 or 0800 9878156 or send us a message for further information.

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