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If somebody lacks the mental capacity to execute a Will for themselves, then it is possible for the Court of Protection to execute a Statutory Will on their behalf. Under the Mental Capacity Act 2005 a Will authorised by the Court of Protection will have the same effect as if that person had held the necessary capacity to make a valid Will and had executed themselves.
The person must lack the specific capacity to make a Will and it is therefore possible for somebody with a mental capacity impairment, perhaps even an existing patient of the Court of Protection to have the requisite testamentary capacity to make a Will themselves. In that case there would be no need for a Statutory Will to be requested but great care would need to be taken to ensure that the correct test of capacity was satisfied and recorded.
To progress an application for a Statutory Will it is necessary to persuade the Court of Protection that the proposed Will is in the “best interests” of the person lacking capacity. Clearly that is a very difficult matter to decide and the court will need plenty of information. Generally speaking the court is more likely to execute a Statutory Will if the person concerned has never executed a Will. However the court may well agree to depart from a previous Will if there has been a significant change in circumstances, such as an increase or decrease in the estate value, birth or death of a previous beneficiary or perhaps an abuse (financial or otherwise) by one of the beneficiaries.
Anyone effected by proposed changes to an existing Will or under intestacy (if appropriate) must be served with the application and they will need to decide whether to make representation to the Court of Protection. Whether to make an application for a Statutory Will is a major decision and can have significant consequences for all concerned. Equally whether to accept an application or to make representation to the Court is a difficult decision, particularly for Charities who have to balance their statutory responsibilities with cost and reputation risk in defending applications.
We can assist applicants (usually the deputy) in assessing the merits of an application and in presenting the required documentation in accordance with the Court of Protection Rules. We also assist respondents (those effected by the application) by advising in relation to the merits of any counter-claim they may have and in negotiating with the applicant, Official Solicitor and ultimately in making representation to the Court itself.