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Statutory Wills – Q&A

Question:

My mother is elderly and living in a Nursing Home. She has been diagnosed as suffering from dementia. She has told me that she wants to make a new Will. Is she able to do so?

Answer:

In order to make a new Will your mother needs to have the required mental capacity to do so. The most normal way of finding this out would be for her (and it has to be her and not you) to instruct a solicitor to attend on her to take instructions. There are certain legal tests that your mother would have to fulfil to prove her capacity. If the solicitor has doubts about her capacity, he would most likely instruct a medical professional, for example her GP or a Psychiatrist, to give another opinion as to her capacity. Assuming that capacity is not an issue, she could then instruct a solicitor who would draft the document accordingly.

If her capacity is an issue (that is to say that she lacks capacity) then there is another option available. An application can be made to the Court of Protection for a Judge at the Court to approve a Statutory Will on her behalf. The procedure is fairly complicated and would usually involve a solicitor. There are also limited people entitled to make the application, but as a general rule, anybody who was a beneficiary under an existing Will is entitled to apply to Court in relation to a new Statutory Will. The costs of the application can be fairly high.

All things considered, a typical application would cost roughly between £3,000.00 to £4,000.00. Once the application was made to Court, a Judge there would appoint the Official Solicitor to represent your mother’s interests. Any parties who stand to be prejudiced by the new Will or affected in any way would be joined as parties to the hearing and have a chance to make representations. In simple terms, if somebody was being cut out of the new Will, they would be informed of this and asked for their submissions.

If the Will was approved by the Court, an Order would then be made allowing the applicant to sign the Will on behalf of your mother and then the Court would seal the Will with the official seal of the Court of Protection. Any application to alter the Will would have to be in your mother’s best interests and, if there is already an existing Will, the evidence would have to be particularly persuasive as to why the Will should be changed. In other words, there would have to be a material change of circumstances for a Judge to consider it.

Find out more about our Court of Protection department

Find out more about our Trusts & Estates department

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