Incapacity and making a will


A will is arguably one of the most important documents that you will make in your lifetime. In order to make a will, you must have capacity. The capacity to make a will is called “testamentary capacity”. This means that you must have the ability to understand what you are doing, the impact that it will have on your estate, and who might expect to inherit from your estate.

You must be able to:

  1. understand that you are making a will;
  2. understand what assets you have and what you are leaving under your will; and
  3. understand if anyone else may have a claim on your estate and the consequences of not including that person as a beneficiary.

Furthermore, you must not be suffering from a mental disorder or delusion which would influence your views when making a will.

If any of the above requirements are not met, then the person is considered to lack testamentary capacity to make a will.

Satisfying the above requirements can be challenging for a person with a brain injury or who suffers from an incapacitating illness such as Alzheimer’s disease. If a person does not have testamentary capacity to make a will, a statutory will application to the Court of Protection may offer a solution for that person.

What is a statutory will?

A statutory will, is a will made by the Court of Protection on behalf of someone who is unable to make one themselves because they lack testamentary capacity. A statutory will is approved by a judge in the Court of Protection and sealed by the Court.

The Court will decide a course of action based entirely upon their assessment of what is in the person’s “best interests” and various factors will be taken into account in order to allow the Court to make a decision.

There are many reasons why a statutory will application may be necessary. It may be that the person has never made a will before. Alternatively, if the person does have a will, then a statutory will may be needed to address existing arrangements which are no longer suitable. For example, it may be that a beneficiary in the will has died, or an asset that was left to a beneficiary has been disposed of. A statutory will may also be necessary where the value of the estate has changed significantly.

Who can apply?

You can apply for a statutory will on behalf of someone who lacks testamentary capacity to make a will if you are acting as the person’s attorney under a Lasting Power of Attorney for property and financial affairs, or if acting as their deputy under a Deputyship Order for property and financial affairs. If you do not fall within either of these categories, or the other listed exceptions, then you need to ask the Court for permission to make the application.

Evidence of lack of capacity

It is a legal principle that everyone is assumed to have mental capacity unless it is established otherwise. For the Court to consider a statutory will application, it must see medical evidence that the person is unable to make a will for himself/herself due to a lack of capacity. A medical practitioner, such as a GP, will complete an assessment of capacity form which can then be sent to the Court along with the relevant application forms. If there is a chance that the person might regain the necessary capacity to make a will in the future, there could be no need to make a statutory will on their behalf.

What does “best interests” mean?

This is a very complex area and involves looking at the person’s individual circumstances.  The Court’s ultimate objective, when considering an application for a statutory will, is whether the proposals are in the person’s best interests. The wishes (past and present) of the person who lacks testamentary capacity are a relevant consideration, but the Court needs to consider many other aspects. For example, this will include information about what the person owns, how much their estate is worth, information about health, life expectancy, past and present wishes, beliefs and values, and current and future care needs.

Who will be notified of the application?

The person making the statutory will application on behalf of the person lacking testamentary capacity has a duty to name certain individuals as respondents to the application. This includes:

  1. Anyone named in an existing will or codicil who might be materially or adversely affected by the application;
  2. Anyone named in a proposed will or codicil who might be materially or adversely affected by the application; and
  3. Where the person does not have an existing will, anyone who would inherit under the intestacy rules.

The Court will provide time to reach an agreement with these people about the proposals in the draft will. If an agreement cannot be reached, then a court hearing may take place to settle any points of dispute.

Once the application has been made, the Official Solicitor will be invited to act as an independent party to the proceedings. Their role is to ensure that the person who lacks capacity has someone independent to represent them in the proceedings.

Once the order is made

If the Court approves the terms of the statutory will, then the Court will issue an Order authorising the will to be signed on behalf of the person who lacks capacity. The will can then be signed and witnessed, and then subsequently sealed by the Court.

Once this has been done, the statutory will has the same effect for all purposes as if the person who lacks testamentary capacity was able to sign it. The will can be used in the normal way to distribute the person’s estate following their death.

Getting further advice

Statutory will applications can be very complex and it is important that you seek professional advice before proceeding.

If you would like further information or advice regarding statutory wills or assistance with an application, please do not hesitate to contact our Court of Protection team on 0191 226 7878.


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