Can someone make a Will if they lack capacity?

Sometimes in life we have the best of intentions but we simply do not get around to doing everything on our list of things to do. For many people making a Will or updating a Will is on that list. But sadly, we cannot foresee the future and a sudden deterioration in health such as a brain injury, stroke or dementia may well result in someone being unable to make or update a Will for themselves.

This could have inappropriate and unintended consequences, such as: -

1. Someone may die without making a valid Will and the laws of Intestacy (a set order of relatives that inherit on death) will determine who gets what and how much but this may not match the person's wishes.
2. Someone's personal or financial circumstances may have changed but their Will has not been updated and does not reflect the changes.

Each scenario is far from ideal. But, all is not lost. An application can be made to the Court of Protection to make a Statutory Will or a Statutory Codicil (a legal document which makes one or two changes to a Will). If the application is successful, the Court will make an Order stating that a responsible party should sign the agreed Statutory Will or Statutory Codicil on behalf of the person who has lost mental capacity.

The person making the application needs to be either an Attorney under a registered Enduring Power of Attorney or a registered Lasting Power of Attorney for Property and Financial Affairs or a Court Appointed Deputy.

At Band Hatton Button, we regularly advise our Attorney and Deputy Clients on the strength of an application to make a Statutory Will or a Statutory Codicil as well as preparing and submitting the application itself.

Likewise, if you are reading this Blog and it occurs to you that a loved one may need a Statutory Will or Statutory Codicil and no Attorney or Deputy is appointed, please contact us in relation to applying to the Court of Protection to appoint a Deputy and thereafter, to prepare and submit a Statutory Will or Statutory Codicil application.

Christina Polychronakis, Solicitor, Wills, Trusts and Probate Team

Direct Tel: 024 7601 6438 Email: CMP@bandhattonbutton.com