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Understand the law around wills and mental capacity

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

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, such as those available through First4Lawyers-contact us today for guidance.

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.

What are the circumstances under which I can write a statutory will?

Some of the reasons for changing or creating a will include the following:

  • The person now has much more money; for example, after winning a personal injury case.
  • Inheritance tax planning.
  • That person’s personal circumstances have changed. An example would be if the person in question would have wanted to include a long term carer in their will, but never got the chance.

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. To it 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 legal advice with regard to the will of someone I care about – what should do?

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.

Do you wish to obtain deputyship over a loved one’s affairs? Do you want to contest the terms of an existing will? Or would you like to challenge someone’s right to deal with the finances of someone you care about?

Whatever your circumstances, please be aware that the dedicated family lawyers at First4Lawyers can help.

How to guides

Learn more about this area of law and what you need to know:

How to start the power of attorney process

This guide will help to break down how to start the power of attorney process

Read more

How to make a will

In this guide, we’ll help you understand how to make a will

Read more

How To Become A Deputy Through The Court Of Protection

This guide will help you through the rigorous application process to become a deputy.

Read more

How to make a living will

In this guide, we’ll help you understand how to make a living will

Read more

Different types of wills

In this guide, we’ll help you understand, different types of wills

Read more

Wills - what you need to know

In this guide, we’ll help you understand, Wills - what you need to know

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How to change trustees, executors and witnesses of a Will

Confused about whether you can change a trustee, executor or witness in your Will? Find out more in our handy guide.

read more

How to update a Will: a simple guide

It’s possible to update your Will using a Codicil with the help of a legal expert. Our quick, simple guide explains everything you need to know.

read more

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