A question our team often get asked is what to do when a relative loses capacity without having made a Will. For a Will to be valid, a person must usually be deemed to ‘have capacity’ at the time of signing it. Solicitors Lucy Wilton & Leah Chenoweth , together with Litigation Executive Claire Lockwood, explain the options available when someone who no longer has capacity needs to make a Will.

A question our team often get asked is what to do when a relative loses capacity without having made a Will. For a Will to be valid, a person must usually be deemed to ‘have capacity’ at the time of signing it. Solicitors Lucy Wilton & Leah Chenoweth , together with Litigation Executive Claire Lockwood, explain the options available when someone who no longer has capacity needs to make a Will.

Can someone make a Will when diagnosed with Dementia?
It should be said that if you have recently been diagnosed with Dementia, it may still be possible for you to make a Will.  If you are in the early stages of Dementia, and your solicitor feels that you do have capacity, your solicitor would normally arrange for your GP/ appropriate medical professional to provide a capacity assessment to formally document this, so you can then go on to complete your Will.   

But what happens if someone doesn’t have capacity?
Sadly, it is not uncommon for people to leave making their Wills until it is too late, and they no longer have capacity. This could be because of something like dementia but could equally be the result of an accident of some kind. We cannot choose when something like this may happen, which can often be quite sudden.

Rules of Intestacy or Statutory Will
There are basically two options available in the scenario where someone has lost capacity without making a Will.  They can either choose to rely on the Rules of Intestacy or make a Statutory Will.  Both routes have their issues, and these are explored further below. As you will see, it is much simpler, as well as being less expensive, to make your Will whilst you are still fit and well.

Problems with reliance on the Rules of Intestacy
When someone dies without a valid Will their Estate is dealt with according to the Rules of Intestacy. The fundamental issue with relying on the Rules of Intestacy is that they simply don’t allow for or recognise modern family relationships. For example, they make no provision for cohabiting, unmarried and unregistered partners, stepchildren, half siblings, or blended families which nowadays are commonplace. Given that they were originally set out in the Administration of Estates Act 1925, this is probably unsurprising, but it does mean that without a valid Will in place, those in cohabiting relationships often do not receive a share of the Estate they have been expecting as their automatic right. Even where a person is married with children, their spouse is only entitled to a set amount of the assets, together with those jointly held. Practically, this can result in children being entitled to assets where you may more commonly expect them to only inherit on the death of both of their parents. If children are under 18, then they cannot consent to alter this division and the surviving spouse may lose out on assets required to continue with family life.

Statutory Wills
A way around the problem of someone without capacity wishing to make a Will is for them to make a Statutory Will.  This is a Will which is drawn up by the Court of Protection on behalf of that person to reflect, as much as is possible, what the person would have wanted had they possessed the capacity to create a Will themselves, whilst considering all relevant circumstances such as family relationships, finances, and any wishes expressed in previous Wills or written documents. 

However, it should be emphasised that applying for a Statutory Will is not as straightforward as giving instructions for a Will and executing it.

To protect the interests of the person without capacity, it is necessary to apply to the Court of Protection to make a Will on behalf of the person who no longer has capacity to do so themselves. The Court of Protection has legal authority under the Metal Capacity Act of 2005 to approve Statutory Wills, but there is a set process to follow in order to complete this important task.

Who can apply to make a Statutory Will?
Usually an application is made by the person authorised to act for the person lacking mental capacity.  This is normally a Court of Protection Deputy or someone with Power of Attorney. More information about the appointment of Deputies can be found here. If no one is formally appointed, then anyone can apply to the Court of Protection for permission to act if the Court of Protection consider it to be in the best interest of the person who has lost capacity.

What is the difference between a Statutory Will and a standard Will?
The only difference between these types of Wills is that a Statutory Will has been authorised by the Court of Protection and is not signed by the person who lacks capacity, but by the person who has been appointed as their Deputy or Attorney. The Court will make informed decisions based on information presented in the application as to the contents of the Will,  details of the person’s Estate, assets and family history, which may not have been a complete reflection of the person’s actual wishes, but may be better than the Rules of Intestacy applying in default.

What is capacity?
Capacity is defined by the NHS as “The ability to use and understand information to make a decision, and communicate any decision made. A person lacks capacity if their mind is impaired or disturbed in some way, which means they’re unable to make a decision at that time.”  If there is any doubt in this respect, a solicitor will require a GP or other qualified Health Professional to provide an assessment.

Capacity to make a Will is different from capacity to make other decisions. There is a leading case which sets out principles for consideration specifically surrounding capacity for an individual to make testamentary expressions, known as the ‘Golden Rule’.

The Mental Capacity Act 2005 is also important in this context.

What is the Court of Protection?
The Court of Protection is a special judicial branch that makes decisions on financial, or welfare matters for people who can’t make decisions at the time they need to be made i.e. they lack capacity.

How long does the process take and what does it cost?
An application fee for a Statutory Will is £421 and is payable to the Court of Protection. You may also have to pay £259 if the Court decides to hold a hearing (including telephone hearings), plus your own solicitor’s fees if you choose to use one, which could be in the region of £3,000-£4,000.  It is therefore only worth exploring this option if the Estate of the person affected is fairly substantial or if the Rules of Intestacy would cause havoc without a Will.

Information about Dementia
Further information and support about Dementia is available from the Alzheimer’s Society

Get in touch
If you would like to speak to a member of our friendly and experienced team about making a Will for someone who no longer has capacity, we would be pleased to hear from you.  You can reach us on 01872 241408 or email us at info@penderlaw.co.uk