If someone has lost the capacity to manage their financial affairs – this does not always mean they do not have the capacity to make a Will. If a person has ‘testamentary capacity’ – then a Will can be created in the normal way.
To have testamentary capacity an individual must be able to understand what they are doing and what their will is saying, the general value of assets their Will is to deal with (i.e. they understand in general terms what property they are leaving) and the people they ought to consider providing for under their Will.
However, when a person lacks the necessary capacity to make a Will it is still possible for a Will to be made for that person. Such a legal document is known as a Statutory Will. A Statutory Will can also be used to save inheritance tax and to deal with all sorts of special family situations.
Statutory Wills are made by submitting an application to the Court of Protection. If an individuals financial affairs are under the control of the Court of Protection then a medical opinion has to be obtained as to whether or not the client has testamentary capacity. The doctor or consultant may charge a fee for their assessment. If the medical opinion is that the person has testamentary capacity – then a Will can be carried out in the normal manner – a copy of the completed Will is sent to the Office of the Public Guardian. If the opinion is that the client does not have testamentary capacity the Statutory Will procedure has to be followed.
An application for a Statutory Will can be made by anyone from a wide category of people:
The application comprises of a statement or statements supporting the terms of the proposed Will, plus a copy of the proposed Will. The Court has published detailed guidelines on what evidence needs to be submitted, and it what form, before an application can be submitted. It is vital that the correct procedures are followed and the appropriate evidence submitted.
Once submitted, the Official Solicitor will be asked to represent the interests of the person alleged to lack capacity as an independent third party. Any person affected by the proposed will is notified. It the application cannot be agreed by all parties then it may be necessary for a Court hearing to take place. Once the terms have been agreed then the Will is signed by the person who made the application.
We have the knowledge and the expertise to best advise you on the process of making a statutory will and the complex law surrounding them so do not hesitate to contact us if you require assistance.