If a person (P) lacks mental capacity, they are unable to prepare a Will or amend a current Will that was prepared when they had capacity. However, there are very exceptional circumstances when the Court of Protection will allow an application to dictate what is to happen to the person’s estate on their death.
This could be for a number of reasons, including the need to ensure that an estate is distributed as P would want, to assist with any tax planning, because the beneficiary of the original Will has died or a beneficiary has received a substantial gift so an adjustment needs to be made.
The Court of Protection is a court which specialises in the protection of the interests of people who cannot make certain decisions themselves as they lack mental capacity. If an attorney or deputy has been appointed for P, they cannot make a Will to alter an existing Will. In all cases, the Application must be made to the Court.
The court of protection apply an objective test to assess whether or not the intended statutory will is in the P’s best interests. The Court will try and get P to participate as much as possible and also take into account P’s wishes and feelings both now and earlier in their life and also look for any written evidence as to what P would have wanted. If a deputy or attorney is acting for P then their views will be considered as well. The Court must have regard to all relevant circumstances and factors and each case must be considered on its own merits.
P also has to be represented so the Official Solicitor acts for individuals who have lost mental capacity. The Official Solicitor acts for P and represents his views at the court proceedings.
An example of how this applies in practice is a case where statutory Wills have been applied for are a case where a Deputy “NT” asked to complete a statutory will on behalf of F. F was 74 and had Alzheimer’s dementia. He had played professional rugby in Leeds and was a property developer. The value of his estate was around £3.1 million.
His own family were arguing as to how the Will should be drafted and who should benefit. He did not have a Will but there was a document in his bible from 1986 which purported to be a Will but it was not valid. The Court did not place that much relevance on it because a lot had changed since it was made. The Court considered F’s moral obligations to the parties, the relationship they had with him and how each one had contributed to his wealth. The Court then made an Order as to who would be the beneficiaries.
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