Legal assistance with statutory wills

Are you the next of kin of someone who is no longer able to deal with their personal and financial affairs due to mental incapacity?

If this is the case, and they have not made a Will, or their financial circumstances have changed since they last made one, then you may be able to write or change one on their behalf.

You may even be able to challenge an existing Will if you believe the person was not of sound mind when they made it, as any such document they draw up in that state will be invalid.

The laws governing mental capacity and wills are complex. With this in mind, it is strongly advisable you seek advice from specialist family lawyers, like ours.

How do I determine whether someone has the mental capacity to make a Will?

For the courts to consider someone over the age of 18 to be of sound mind, that person must:

• Be aware that the wishes expressed in the Will take effect when they die.
• Understand the way their assets will be shared amongst the different heirs.
• Be able to remember the property that is being disposed of.
• Realise the nature and extent of the claims on their estate.
• Know of and consent to the terms of the Will at the time it was executed.

If you believe the person is not of sound mind according to the above criteria and you wish to change a Will or write a new one on their behalf, then you must apply to the Court of Protection to become that person’s deputy.

If the Court approves your application, you will be able to draw up what is known as a Statutory Will.

When do you need a Statutory Will?

There are a number of circumstances where the Court of Protection may approve an application:

• the vulnerable person has never made a Will before.
• their estate has reduced in value.
• their estate has increased in value.
• a beneficiary of an existing Will has died.
• a beneficiary of an existing Will has already received substantial gifts, and the Will should be adjusted.

As a deputy, can I change or add whatever terms I wish to a Statutory Will?

No. There are strict guidelines regarding statutory wills. As a result, the Court of Protection must approve the terms of the Will.

For it to be approved you must provide:

• Evidence of a lack of mental capacity.
• Details of the assets the Will affects.
• Copies of any wills the person made earlier.
• An explanation of the terms you propose and why the Court should authorise them.
• A draft of the proposed Will.
• Background information about the person and his or her family and dependents.
• Information regarding the tax implications of the draft Will.

Ultimately, you must prove the new Will acts in the interests of both the person in question and their beneficiaries.

Can I challenge a Statutory Will?

As previously stated, the Court of Protection seeks to act in the interests of the person whose mental state is in question. In doing so, it always checks that there are no objections to the appointment of a deputy and that their actions are in the best interests of those concerned.

Yet sadly, people in positions of trust sometimes abuse their responsibilities for their own gain. This is all too common where a vulnerable person is involved. If you have concerns that a deputy is taking advantage of a person you care about, you may have grounds to contest the new terms of a Statutory Will.

I need further legal advice – what do I do next?

We advise that you contact a solicitor as soon as possible. By contacting First4Lawyers we can match you with an experienced legal professional who can take on your case.