One question we often get asked is ‘Can I make a Will for someone else?’. To make a valid Will, the Testator (person making the Will) must demonstrate that they have the capacity to do so by meeting several tests.
They must:
1. Understand the nature and effect of making a Will
2. Comprehend what assets make up their estate
3. Appreciate any claims that may be made on their estate
4. Not be suffering from any disorder or delusion which might affect the provisions set out in the Will
In most cases, following a consultation with one of our experts, it will be obvious that the Testator has the necessary capacity. However, if there is doubt, we will seek a capacity report from a Doctor to determine whether the Will can be made.
What happens if the Doctor confirms a lack of capacity?
It will not be possible to continue with making the Will. If there is already a valid Will in place, the estate will be distributed in accordance with this, though it may be out of date and no longer reflect the Testator’s wishes. If a Will isn’t already in place, the estate will be distributed in accordance with the rules of intestacy which could mean that the Testator’s most valued family, friends and charitable causes do not benefit.
My loved one has lost capacity and has an unsuitable Will or no Will at all. How can I ensure their estate goes in accordance with their wishes?
It is no longer possible for your loved one to make a Will themselves but there is the possibility of applying to the Court of Protection to make a Statutory Will on their behalf.
How does a Statutory Will application work?
You need to submit several forms and supporting information to the Court of Protection including:
• application form
• capacity report
• witness statement
• copies of any Wills or Powers of Attorney already in place
• details of the person’s financial and living circumstances
• reasons why the intended beneficiaries are included in the Will.
There is an application fee of £371 or £494 if the Court requests a hearing.
As the applicant, you must ensure that you are acting in the person’s best interests and consider what they would do if they still had capacity and their personal beliefs and values.
Once the Court has received the information it requires, it will send out a Court Order explaining what to do next, including details of interested parties who should be given notice of the application, so that objections can be raised if necessary. The Court may hold a hearing if an agreement cannot be reached regarding the proposed Will. The Court will then make its decision.
If the application is rejected, you will have the opportunity to appeal.
If the application is accepted, the Court will provide further instructions on how to complete the Will. Once the Will is completed, it can then be used as if the person had made it themselves and be used to distribute their estate on death.
The application is very complex and it is important that it is overseen by a legal professional. If you would like to discuss Statutory Wills then do not hesitate to contact one of our Wills and Probate Team at Josiah Hincks Solicitors.
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