If someone loses mental capacity without having made a Will, or their circumstances change substantially after they have lost mental capacity, they may need a Statutory Will to be made on their behalf.

The important starting point is whether someone has ‘testamentary capacity’. Sometimes someone who is no longer capable of managing all their financial affairs is still deemed to be capable of making a ‘normal’ Will because they know exactly what they want to achieve even if they are not capable of doing the day to day paperwork. You will probably need help from a solicitor and/or a doctor to establish this.

If a Statutory Will is required, it will deal with all the same sort of considerations as a standard Will, such as Inheritance Tax planning and specific bequests. Everything in it has to be in the best interests of the individual for whom it is being made, and as far as possible will take into account any past or present wishes and feelings that the individual has expressed. Any relevant written statements made by the person when they still had capacity can be particularly useful.

The Court of Protection has to take responsibility for making a Statutory Will, and it does not do so lightly. The process usually takes much longer than making a normal Will, although it is sometimes possible to speed the process up if you can show that the matter is urgent because someone’s death is imminent. It will also be more expensive, involving a Court fee. However, we often see circumstances where it is still a worthwhile investment because of the complications that will arise, or the tax that will become due, if the individual dies without a valid Will.

We will be happy to discuss individual circumstances with you and, if a Statutory Will is the best option, guide you through what can be a fairly complicated process.


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