Making a Will for someone who has lost mental capacity
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Where someone has lost mental capacity and has not made a Will, or the Will they have made is not adequate for their circumstances, it is possible to apply to the Court of Protection for a Statutory Will on their behalf. Note that just because they have lost the ability to manage their finances does not necessarily mean they are unable to make a Will. The criteria for capacity to make a Will (which can be found in the old court case of Banks v Goodfellow 1870) is not the same as the criteria for mental capacity under the Mental Capacity Act 2005.
The Statutory Will process
The process is as follows:
- A range of forms and documentation must be prepared and sent to the Court.
- A number of people must be informed of the intention to make a Statutory Will (including anyone who would no longer inherit if the Will were to be made).
- A hearing may be held if the Court decides that one is necessary.
- If the Court approves the application, the Will must be signed, witnessed and sent to the Court to be 'sealed'.
It is possible to make an urgent application for a Statutory Will if it is believed that the person concerned is likely to die soon.
The amount of documentation for a Statutory Will application is fairly substantial. It includes:
- The Court application form (COP1)
- Witness statements in the form COP24. These will detail information about what the person would do if they were able to make a Will themselves, their beliefs and personal values, how they’ve acted and made decisions for themselves in the past and reasons the person might be expected to provide for people named in the proposed Will (‘beneficiaries’). Ultimately the statements must show why making the Will (or amending any current Will) would be in the person's best interests. The statements may be accompanied by evidence such as letters and cards.
- An information form (COP1C). This is a fairly short form detailing the order that you are asking the Court to make, with a checklist for required documents.
- Assessment of capacity form (COP3) - this needs completing by an appropriate professional such as the person's doctor or consultant. Although it is not clear from the form, specific reference must be made to certain relevant points such as testamentary capacity.
- A copy of the person’s current will and any amendments (‘codicils’).
- A copy of the proposed new will or codicil.
- A copy of any deputyship order.
- Details of the people who have agreed to deal with the will after the person’s death (‘executors’) - you will need to provide proof of consent.
- A copy of any registered lasting power of attorney or registered enduring power of attorney.
- The person’s family tree. This will show the Court who would inherit if the Will were not made (or under the current Will, if there is one). Where unknown relatives stand to inherit (cousins for example) it may be necessary to commission a geneolist to research that part of the family tree so that the interested parties can be contacted.
- Details of the person’s estate and assets and accounts showing their estimated income and outgoings. If a Deputyship order is in place, recent Deputy accounts are ideal for this.
- Details of any inheritance tax payable in the event of the person’s death.
It is also likely that a litigation friend will be apppointed for the person - this is someone neutral who can act in the person's best interests in the proceedings. If nobody is available to act, the Official Solicitor may fill this role.
It is fair to say that preparing everything required for a Statutory Will application can be an arduous task. Having a solicitor to assist certainly takes much of the stress out of the process.
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