A will is an important document that, assuming we are of sound mind to make it and understand its implications, can be used to set out how our worldly belongings will be distributed after we die. But what if someone has money, possessions and property but they lack the mental capacity to make a will?

Below we look at how a statutory will can provide the loved ones of someone lacking testamentary capacity with a suitable way forward.

What is a statutory will?

A statutory will is a will that is overseen by the Court of Protection. This court has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

The Court of Protection has a number of duties towards a person lacking mental capacity, including a duty of care to make suitable provision for the fair distribution of that person’s assets once they have died.

In considering the contents of any statutory will, the court will have regard to the personal circumstances of the individual, including any feelings or wishes they might have previously expressed that could be relevant to the distribution of their estate, as well as the views of those closest to them.

It is this careful and thorough assessment of an incapacitated person’s best interests that can bring the necessary peace of mind for the loved ones of someone who no longer has the capacity to make or amend their own will.

How is a statutory will put in place?

If you would like to make or amend a will on behalf of someone who can longer do this for themselves, for example, because they have become incapacitated through illness or injury, you will need to apply to the Court of Protection.

You can apply for a statutory will in circumstances where the person is not able to understand what making or changing a will means; how much money they have or what property they own; or how making or changing a will might affect the people they know, including those mentioned in the will or those left out.

That said, someone who has merely lost the mental capacity to manage their own finances may still have the ability to make or amend a will. As such, the Court of Protection will need medical proof that the person is lacking testamentary capacity. You will also need to provide various documents in support of an application, including a copy of any proposed will or amendments.

What if someone dies without a statutory will?

If a loved one who has become incapacitated dies without a statutory will, any will that existed prior to their illness or accident will usually still stand. If, on the other hand, they die intestate, ie; without having a will in place at all, certain rules will come into play here. These are known as the rules of intestacy, where no protection whatsoever is offered under these rules for unmarried partners.

Further, in circumstances where the deceased was married or in a civil partnership at the time of death, depending on the value of their estate, this may mean that no provision is made for the deceased’s children.

It is therefore important to seek expert legal advice as soon as possible to ensure that adequate financial provision is made for any dependants and loved ones of the incapacitated person by way of a statutory will.

For further advice please call 01253 629300 or email info@blackhurstbudd.co.uk

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.