If the person you know does not have capacity to make or change their Will and it would not be right to leave things as they stand, you need to make an application to Court to approve a Statutory Will for them. Our Court of Protection team is experienced in dealing with the issues surrounding the need to make a Will with sensitivity and compassion with every family member and person involved.
When would a statutory will be needed?
An application can be made to the Court of Protection to make or change to a will on behalf of someone who cannot do it themselves. For example, this may be because they have;
- Dementia/age-related condition
- a serious brain injury or illness
An application can be made if the person is not able to understand;
- the implication of making or changing a will
- how much money they have or what property they own
- how making or changing a will might affect the people they know (either those mentioned in the will or those left out)
It is important to recognise that someone who has lost the mental capacity to manage their finances may still have the ability to make a will. Our solicitors can ensure that an assessment of capacity is made to determine if it will be possible to make a will.
Why do they need a will?
Without a will, the person’s estate will be administered following the intestacy rules (set by the Court) which may not be a suitable outcome for your family. Our solicitors can explain who would inherit, and in what order, depending on the family circumstances, if a will was not made.
Who can apply for a Statutory Will?
The categories of people who can apply for a Statutory Will are:
- The incapacitated person themselves
- A Deputy
- Official Solicitor
- Public Guardian
- Any person who has applied to be appointed as a Deputy
- Any beneficiary under the last Will or intestacy
- Any person who is an Attorney under an Enduring Power of Attorney or Lasting Power of Attorney
- Anyone for whom the incapacitated person might be expected to provide
- Any other person who has the permission of the Court
What does the application involve?
Once medical evidence has been obtained confirming that the person does not have capacity to make or change a Will, then a Statutory Will needs to be prepared and sent to the Court of Protection, along with an application for approval. The Court will look at the request for the will and determine whether it considers the request to be in their best interests, amongst other criteria, for it to be approved.
What happens once the application has been sent to the Court?
Certain people have to be advised about the application. Everyone who has been sent the application has the right to put forward representations and have their views considered. Time is given for an agreement to be reached. If agreement can be reached this can be passed to the judge for approval, without a Court hearing.
Would a Court hearing be required?
If an agreement cannot be reached, the Court of Protection will hold a hearing and the outcome will be determined by the judge. A decision made at a Court hearing can be reconsidered within 21 days of the decision.
Why use Linder Myers?
Completing the application can be overwhelming as it involves using forms set by the Court, completing them correctly, sending additional information and documentation, following the process in the right order, within the timeframes set by the Court, paying the right Court fees and making sure that you notify all the right people and drafting an appropriate Statutory Will. The application to Court can take 16 weeks or longer but we can ask the Court to deal with this urgently for you.
The area is complex and our experienced solicitors at Linder Myers will be able to consider your individual family’s circumstances and advise you on the likely outcome. We can visit you at your home to provide advice and will answer your questions and any concerns, sensitively.
For friendly advice and guidance, contact our Court of Protection team on 0800 042 0700 or email firstname.lastname@example.orgMeet the Court of Protection team