How to make a Will for someone who has lost mental capacity
Can someone with dementia make a Will? Can a Will be made for someone who lacks mental capacity? What is a ‘statutory Will’?
Sometimes, an individual may lack the requisite capacity to make or amend their Will, but there may be a need to execute a Will for them to change their existing testamentary arrangements.
Whilst some decisions can be made on their behalf through a Lasting Power of Attorney, other decisions such as making a Will, can only be made by the Court of Protection. A Will made on behalf of someone by the court is known as a ‘statutory Will’.
To make a valid Will, the testator must have the requisite legal and mental capacity, otherwise known as the ‘testamentary capacity’.
If the person making the Will (‘testator’) lacks testamentary capacity at the time that the Will is executed, the Will is invalid.
Unfortunately, in some cases a person may have lost capacity because, for example, they have suffered a serious brain injury or have an illness such as dementia.
You may wish to make a Will on their behalf, or change their current Will, to better reflect their best interests.
Under these circumstances, you will need to apply to the Court of Protection to create a ‘statutory Will’.
The Court of Protection is a specialist court set up to protect the interests of those who cannot make certain financial or welfare decisions by themselves, because they lack the requisite mental capacity.
The Court will consider various factors in their decision-making process. Any decision made for, or on behalf of, a person who lacks capacity must be done in their best interests.
You can apply to the Court of Protection for a statutory Will when the person in question is unable to understand:
• What making or changing a Will means;
• How much money they have;
• How much property they own;
• How making or changing a Will might affect the people they know (whether those mentioned in the Will or excluded)
• It is important to note that capacity is a time-sensitive and matter-sensitive concept. An individual could lose testamentary capacity at one point in their life but regain it at a later time. Equally, someone who has lost the mental capacity to manage their own finances may still have the ability to make a Will.
We outline the process involved in making a statutory Will on behalf of someone else below:
The Court’s Power
The Court has the power to order the execution of a statutory Will on behalf of a person who lacks the capacity (as defined in the Mental Capacity Act 2005) to make one themselves.
A deputy cannot be given power to execute a will for the person for whom they act and so an application to court is the only means of obtaining a Will for such a person. An application can only be made on behalf of someone who is aged 18 or over.
The Court must always be persuaded that there are sufficient grounds for departing from the person’s existing testamentary arrangements. This is most likely to succeed where:
• The person has never executed a Will; or
• There has been a significant change in the person’s circumstances, when the person might be expected to review his own arrangements.
The Court has no jurisdiction to rule on the validity of any existing Will, so it would not execute a statutory Will simply because there is an issue regarding the validity or construction of any existing Will.
However, the Court might execute a new Will if it is satisfied that the previous Will was executed under some form of undue influence or the testator lacked capacity when he made that Will; provided that revocation of this Will and execution of a new one would be in their best interests.
When considering the person’s best interests, the Court would consider the person’s:
• Past and present wishes and feelings (and, particularly, any relevant written statement made by them when they had capacity);
• Beliefs and values likely to influence their decision if they had capacity;
• Other factors they would likely consider if they were able to do so.
Who can apply?
Generally, the Court’s permission is required for an application. However, some categories of people are exempt and therefore do not require permission to apply:
• A deputy (or person who has made an application for the appointment of a deputy)
• The Public Guardian
• The Official Solicitor
• The donee of a registered lasting power of attorney or enduring power of attorney
• A person who may otherwise become entitled to any property of the person in question or any interest in it under their existing Will or intestacy rules.
How to apply
There a few steps which need to be taken to apply to the Court for a statutory Will:
Application
You will need to download and fill the following the forms to apply to make a statutory Will on behalf of someone, or make changes to their existing will:
• Application form (COP1)
• Witness statement (COP24)
• Information form (COP1C)
Along with these forms, you will need to fill in an ‘assessment of capacity form (COP3)’. This form is important as it provides evidence that the person in question lacks ‘mental capacity’.
Supporting Information
You will need to include the following information and documents:
• a copy of the person’s current will and any amendments (‘codicils’)
• a copy of the proposed new will or codicil
• a copy of any deputyship order
• details of the people who have agreed to deal with the will after the person’s death (‘executors’)
• a copy of any registered lasting power of attorney or registered enduring power of attorney
• the person’s family tree
• reasons the person might be expected to provide for people named in the will (‘beneficiaries’)
• the person’s address and details about where they’re living, for example care home, hospital
You must also provide:
• details of the person’s estate and assets
• accounts showing their estimated income and outgoings
• details of any inheritance tax payable in the event of the person’s death
Fees
An application for a statutory Will costs £365 (as of November 2020). You may also have to pay £485 if the Court decides to hold a hearing, solicitor’s fees if a solicitor is appointed and counsel’s fees (if applicable).
After you apply
The Court will then send you a letter to confirm that the application has been received and a stamped copy of the application form. You will also receive a ‘directions order’ from the court which will set out what you should do next.
The order might tell you to write to the Official Solicitor to tell them about your application. The Official Solicitor is a person appointed by the court to ensure that vulnerable people who cannot make decisions for themselves have someone to represent them.
The ‘directions order’ will also state who you must serve your application on. This may include anyone named in an existing Will who would be affected by the change, the Official Solicitor and family members who would expect to benefit from any inheritance.
You must serve a ‘Notice that an application form has been issued (COP15)’ and an ‘Acknowledgment of service form (COP5)’. These documents can be served by post, by fax or email or in person.
Executing the statutory Will
If the application has been accepted by the Court, then they will send you a letter with steps on what to do next. One of these steps will be to sign and execute the Will.
You must sign two copies of the Will and both copies should be signed in the applicant’s name and in the name of the person for whom the Will has been made. You must also get two witnesses to sign them.
The signed Wills must be sent to the Court to get the Court’s official seal on them.
When the person in question dies, the statutory Will can be executed and handled in the same way as a normal Will, as if the person had made the Will themselves.
