How does a person's level of understanding or 'capacity' impact on their ability to make a Will?

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Wills are important documents that set out, amongst other things, what should happen to a person’s property and other assets such as cash and personal belongings after their death.

Making a Will is usually a fairly straightforward process. But what happens if a person’s ability to remember or process information is such that their ability to make or review their Will could be called into question?  This is an important question to consider because resolving disputes over the contents of a person’s Will after they have died are frequently more expensive than making sure that the Will is properly prepared and valid whilst they are alive.

What is testamentary capacity?

In order for a Will to be valid it must comply with various legal requirements.  One of the most important being the need for the person making the Will to have a certain level of understanding that is known as ‘testamentary capacity’.

To have testamentary capacity a person must:

  • Be able to understand the act of making a Will and the effect that the Will will have when they die;
  • Be able to understand the extent of the property which the Will disposes of;
  • Be able to understand and appreciate the claims which others might have on what they own and what they may need to  take account of;
  • Have no disorder of the mind that distorts their sense of what is right or prevents the exercise of their natural faculties in disposing of their property by Will.

It is not a memory test; someone making a Will can have a poor memory, yet still have testamentary capacity, as might someone who has been assessed as being unable to manage their finances.  The question of whether someone has testamentary capacity is usually decided by a qualified professional, such as a doctor, but there are a variety of people who can make that assessment.

If someone has testamentary capacity they will be able to make a Will should they choose to do so, but they cannot be compelled to make one.  The important thing is for them to understand the consequences of not making a Will so that they can make an informed decision as to whether they should make one or do nothing.

What happens if someone does not have testamentary capacity?

If someone has been assessed as lacking testamentary capacity there are two options to carefully consider:

  1. Do nothing!

    An existing valid Will (made by the individual before they lost their testamentary capacity) will continue to be valid.This means that if an existing Will is sufficient no action will be needed.It should however be kept under review to take account of any change in family or other circumstances including any change in the things that they own or their value.

    If there is no Will, the individual’s assets will be inherited by those entitled to receive them under the ‘Intestacy Rules’. The intestacy rules are set out in an act of parliament and they are reviewed from time to time but usually result in those which you might consider to be your ‘next of kin’ inheriting your estate in a specific order. However, there is a need for caution and individual circumstances need to be checked against the rules as you may find that people you thought would inherit will receive less than anticipated or nothing at all and those who you thought would not inherit may do so. Inheritance will also depend upon whether property is jointly owned and how that joint ownership is recorded or who has contributed towards the joint assets and in what proportion.
  2. Make an application to the Court of Protection for a Statutory Will

    In certain circumstances, it may be appropriate to apply to the Court of Protection for a ‘Statutory Will’ to be made on an individual’s behalf.

Statutory Wills

A Statutory Will is a Will that is made by the Court of Protection for an individual who lacks testamentary capacity.  Provided it is approved by the Court and then properly signed and witnessed it will have the same legal authority as if the person lacking capacity had made the Will themselves.

There are many reasons why it may be appropriate to apply to the Court for a Statutory Will, some of them are set below but this is not an exhaustive list.

  • The individual has never made a Will before and has substantial assets or family circumstances where the rules of intestacy will be inappropriate;
  • There has been a change in circumstances since they made their last Will (for example, the original beneficiaries are no longer alive, the assets have already been gifted or the existing Will or intestacy position no longer reflects what the individual may have wished for);
  • The value of the individual’s estate has either decreased or increased significantly, requiring new provisions or the amendment of existing provisions;
  • They wish to name particular persons to act as their executors/trustees/guardians for their children;
  • Tax planning (as long as it is shown to be only in the individual’s best interests).

Who makes the application to the Court for a Statutory Will?

The following people can make an application without permission:

  • Court-appointed Deputies;
  • Public guardians;
  • Attorneys under a Lasting Power of Attorney or an Enduring Power of Attorney;
  • Someone who, in an existing will or due to the intestacy rules, might become entitled to property or lose their entitlement;
  • Someone who might be expected to receive some inheritance;
  • Some other people in exceptional circumstances.

Anyone else will need to seek the court’s permission before making an application.

Just because a person doesn’t have testamentary capacity does it mean that they or others don’t get any say in the process?

Not at all.  The ill is submitted to the court as a draft following consultation with the person for whom it is being made, who is known as ‘P’ (if they are capable of expressing their views and wishes) and there are often wider consultations with others – see below.

What does the court consider?

The court will look at the factors listed in Section 4 of the Mental Capacity Act 2005 such as:

  • P’s past and present wishes and feelings (and, particularly, any relevant written statement made by them when they had testamentary capacity);
  • P’s beliefs and values that may be likely to influence their views if they had capacity even if they can no longer express them;
  • Any other factors that P would be likely to take account of when considering the content of their Will if they were able to do so.

In addition to the above, the court may also consider the opinions of those who are close to the individual such as family members and friends or those who work closely with them (such as carers, their attorney or appointed Deputy).

Who looks after P’s interests?

A representative of The Official Solicitor. The Office of the Official Solicitor is an independent government body and the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves.  They will speak to the court on their behalf and put forward a view which they consider is in P’s best interests. 

Who pays?

If someone has testamentary capacity and chooses to make a Will they will be responsible for the fees. 

If a Statutory Will application is needed the court will usually say that P should meet the cost of the application which means that they will pay the fees of the person making the application if they are a professional or they ask a professional to help them, the fees of the Official Solicitor and the fees of professionals appointed to represent anyone else who is notified or made party to the application.  There are exceptions to this and the court will very carefully consider whether it is appropriate for P to meet the fees of those who have acted unreasonably during the course of the proceedings.

Can a Statutory Will be changed?

Once a Statutory Will has been approved by the court and signed by the person authorised to do so it will be as legally binding as a regular Will. It can however be changed if a new Will is needed in the future but this will require a further application to the court.

Sometimes amendments can be made to an existing Will by something known as a codicil. This is a legal document which usually deals with minor alterations to an existing Will. All of the information detailed above applies equally to codicils.


A Will is an important document which most people should have.

Statutory Will applications can be straightforward but they often take time due to the court’s process and the need for careful consultation.  Sometimes applications can be complex and more expensive due to family circumstances, the value of a person’s assets or if the proposed content is disputed by family members.

The decision as to whether a Statutory Will application should be made must be one which is taken following careful consideration and the outcome will depend upon the individual circumstances of each case.  

If you need any advice or guidance on any of the issues covered in this article, please contact our specialist Court of Protection team on 0845 160 1111, email or complete our online form.