Making a Will for someone who has lost capacity

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Making a Will for someone who has lost capacity to make their own 

The idea of signing a Will on behalf of someone else just doesn’t quite seem right. A Will is such a deeply personal document and provides one last opportunity to leave your mark on the world. Unfortunately, not everyone makes a Will or updates their existing Will whilst they're able to so, it’s one of those tasks that we all like to put off for as long as possible! For some of us, the ‘do it tomorrow’ approach can result in a situation where we still need an updated Will, but for a variety of medical reasons, can no longer understand or remember the issues involved for long enough to make what can often be relatively complicated decisions.

In these circumstances, it is sometimes possible for someone else to sign a Will on your behalf via the Court of Protection.

What happens if I die without a Will?

We all have to accept that one day we will die. And when we do, unless we have made a Will, the ‘intestacy rules’ will decide what will happen to our money, property and personal possessions. For many of us, the rather ancient rules of intestacy impose an outcome that in no way reflects what we would have chosen to do if we had made our own Will. For example, the intestacy rules do not acknowledge step-family members, unmarried partners or life long friends, regardless of any wishes that we express or relevant circumstances.

In essence, the intestacy rules provide a fairly crude ‘one size fits all’ approach for deciding what should happen to someone’s estate where there is no Will. For some of us, the intestacy provisions are suitable but for an increasing number, they simply won’t do!

Making a Will and the issue of Capacity

The test of capacity to make a Will (known as ‘testamentary capacity’) was established as far back as 1870 by the case of Banks vs Goodfellow. In short, a person making a Will (known as a ‘testator’) must be capable of understanding the following:

  • The nature and effect of making a Will;
  • The extent of his / her estate
  • The claims of those who might expect to benefit from the testator’s will (both those included in the will and those excluded; and
  • The testator should not have a mental illness that influences them to make decisions in relation to the Will that he or she would not otherwise have made

If a person is unable to understand the above for long enough to make decisions about their Will, they will be unable to make a Will. If this is the case, it may be appropriate for someone to apply to the Court of Protection for a Will to be made on their behalf.

Court of Protection

The Court of Protection is able to make decisions for people who lack capacity to make their own decisions about specific issues. One of the main roles of the Court is to appoint deputies to make ongoing decisions for people who lack mental capacity to make various decisions about their own property and financial affairs. The Court will generally give a Deputy wide ranging powers to make the majority of decisions on behalf of the person whose affairs they have been appointed to look after. However, there are some important decisions that a deputy is not permitted to make without further authority from the Court, one of which is making a Will. If someone has lost capacity to make their own Will, a new Will cannot be made for them without an Order from the Court of Protection. A Will made in these circumstances is known as a 'Statutory Will'

What is included in an application for a ‘Statutory Will’?

The starting point is establishing whether the person involved lacks the capacity required to make their own Will (see above). This will require an assessment and the completion of a specific form by a suitably qualified professional.

Once the issue of capacity has been resolved, a detailed application needs to be prepared which involves the completion of some specific Court of Protection forms and the gathering of supporting evidence / documents. The Court understandably requires a substantial amount of information about the person the application is about.

The application would usually include copies of the following:

  • Family Tree
  • Any existing Will / Codicil
  • Detailed Witness Statement prepared by the person making the application
  • Proposed draft Will
  • A schedule of capital assets held by the person who has lost capacity
  • A summary of average income / expenditure
  • Summary of Inheritance Tax position 
  • Any other relevant documents

Although it’s possible to submit an application without assistance from a solicitor, given the nature and complexity of the issues involved, it's advisable to instruct a specialist Court of Protection Solicitor to prepare the papers.

An application would usually be submitted by one of the following:

  • Deputy or Attorney
  • Someone who stands to inherit under the intestacy provisions
  • Someone who would expect to inherit if the person were able to make their own Will
  • Anyone else granted authority by the Court to make an application

Statutory Will Process

Once an application has been submitted to the Court, anyone who is affected by the application will be issued with a copy of the application papers and given the opportunity to have their say. This would usually include anyone who stands to inherit from any existing Will or the Intestacy rules along with anyone who stands to inherit from the draft proposed Will. The Court is also likely to instruct the Official Solicitor to represent the views of the person whom the application is about.

Provided everyone is in agreement about the contents of the draft Will, the Court may issue an Order providing authority for the person who made the application to sign a Will on behalf of the person lacking capacity on the agreed terms.

If there is a disagreement about what should be included within the Will, the Court may request a hearing so that the different points of view can be heard before a decision is made.

How does the Court decide what to do?

The Court will need to be satisfied that the draft Will is in the person’s ‘best interests’ before providing authority for the Will signing. The Court will consider all relevant factors before reaching a decision, including any wishes or views previously expressed by the person lacking capacity to make their own Will.

How much does this all cost?

It’s very hard to predict! Much will depend on whether the application is contested or whether an agreement can be reached between all of the people affected. The usual position is that all costs are covered by the person who has been assessed as lacking the capacity to make their own Will. However, the Court can depart from this position if one or more parties are considered to have acted unreasonably as part of the process. A Statutory Will inevitably costs much more than a Will for someone who can provide their own instructions (i.e. a person with capacity to make their own Will). This is one of the many reasons as to why it's important to regularly update your Will as and when your circumstances and wishes change.

Hyphen Law

We have a number of experienced specialist Court of Protection solicitors who can help you with the whole process.