• Rita Sen Solicitors

Lacking Capacity – A Will is Still Necessary

Updated: Mar 10, 2021

An individual who is lacking capacity to make a Will may still require one. In many cases they may already have a perfectly valid and appropriate Will, but what happens if they do not?

Unfortunately, we all tend to put off updating our Wills as we should. Things change. We dispose of property that we had intended to leave to a specific individual; we marry and, sadly, divorce. Inheritance Tax law changes. Similarly the circumstances of our intended beneficiaries alter. They too marry and their relationships break down. Some may suffer financial problems that lead to bankruptcy. Sometimes we fall out with people, even family members, or we lose contact with them. Proposed beneficiaries die. Worse still is the growing realisation that the abuse, financial and even physical, of vulnerable people is more widespread than we had previously believed. On occasions we may be “persuaded” to execute a Will that does not truly reflect our wishes. On a brighter note there are additions to the family. Any such change may mean that an existing Will is no longer fit for its purpose. Then, of course, there are the many individuals who do not have a Will at all and whose estate will be subject to the vagaries of the Intestacy Rules unless some action is taken.

We have previously made mention of the test for appropriate mental capacity to be able to make a Will. However, where an individual is lacking capacity, it may still be possible for a Will to be made. The Court of Protection has the jurisdiction to authorise the making of a Will on behalf of an individual who is lacking capacity. Where the Court exercises this jurisdiction it will determine the terms of the new Will, acting in the best interests of the person who is lacking capacity. A Will made under the provisions of such a Court Order is called a Statutory Will.

The starting point in considering whether an application for a Statutory Will should be made is the terms of any existing Will. If this is held by a Bank, Solicitor, or anyone else who refuses to release it the Court of Protection has the power to order its production.

The Court will need to be persuaded that the individual does not have capacity to make a Will for him or herself. Because different considerations apply it may be that someone who suffers from a lack of capacity so far as the management of their own financial affairs is concerned continues to have capacity to make a Will. In these circumstances, because of the risk of subsequent litigation, it is still sensible to refer the matter to the Court for directions for the making of a Will.

Where there is medical evidence that the individual is lacking capacity the Court will consider all of the circumstances. It will take into account evidence of what an individual might have done himself if they had appropriate capacity, but the Court is not obliged to act upon such evidence. Undoubtedly it will give considerable weight to it, but the overriding requirement is that the Court acts in the best interests of the person who suffers from a lack of capacity.

Anyone who is appointed as a Power of Attorney, or a Court of Protection Deputy to look after the affairs of an individual who is lacking capacity should give serious consideration to what is to happen on the death of the individual concerned. The process of applying for a Statutory Will regrettably is not straightforward and it is always sensible to take proper advice before proceeding. It should also be borne in mind that anyone likely to be affected by the application (such as family members and beneficiaries under any existing Will) are likely, at the very least, to be notified of the application and the Court may direct that they be made Respondents to it.

Despite these difficulties the jurisdiction of the Court of Protection to authorise the making of a Statutory Will on behalf of someone who has a lack of capacity can be extremely useful, both in ensuring that the estate of such a person is properly distributed when they eventually die and also as a measure to guard against litigation that can dissipate a large proportion, if not all, of the estate.

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