What Happens If A Family Member No Longer Has Capacity To Make A Will?

If you are concerned about your family member’s mental capacity in relation to making a Will, contact us sooner rather than later.

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By Nicola Briggs - 18th June 2021

If your family member does not have sufficient mental capacity to make a Will, you have three options available: rely on the intestacy laws, apply for a Deed of Variation after their death, or ask the Court of Protection to approve a Will.

Making a Will and mental capacity  

For a Will to be valid, the person making the Will (known as the ‘Testator’) must have mental capacity at the time of signing. In this context, the question of capacity is not black and white. It has many shades of grey. The position is not governed by the Mental Capacity Act 2005 but rather by case law.

This means that in practical terms, your loved one could have been diagnosed with dementia – but he or she could still able to make a Will. It all depends on whether your relative meets the test for capacity to execute a valid Will.

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Test for mental capacity

Your relative is deemed to have sufficient mental capacity to make a Will if he/she:

  1. Understands the nature of the Will and its effect; and
  2. Understands the extent of their property of which they are disposing; and
  3. Is aware of persons for whom they would usually be expected to provide; and
  4. Is not suffering from any condition that interferes with their normal decision making concerning testamentary dispositions.

Independent capacity assessor

If there is any doubt as to whether the Testator meets this test, it is necessary to appoint an independent capacity assessor. This protects everybody concerned, as their assessment will be vital evidence, should a dispute arise later down the line. This is particularly important if the Testator wants to exclude their own child or write something that is completely different to any previous Will.

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There is not sufficient mental capacity

If your loved one does not meet the test for mental capacity, there are three options available.

  1. Rely on the intestacy laws

Where there is no Will, you could simply rely on the intestacy laws. These dictate who receives what when someone dies intestate (meaning without a valid Will in place).

However, relying on the intestacy laws is a potentially dangerous route to take. This is because a Will could be discovered later that was previously not known about. It could also mean that certain people receive nothing, such as unmarried partners.

  1. Make a Deed of Variation 

The second option is to wait until your loved one has passed away and then make a Deed of Variation. This is when the beneficiaries alter the contents of the Will. This must be done within two years of the date of death.

If you want to make a Deed of Variation, then all the beneficiaries must be of adult age with full mental capacity. Problems will therefore arise if one of the beneficiaries is a charity, a minor or someone without mental capacity.

  1. Apply to the Court of Protection 

The final option is to make an application to the Court of Protection for a statutory Will. In this application, you can either ask the court to approve a Will or make changes to an existing Will. This comes with significant costs.

Applying for a statutory Will is only appropriate where the estate has a significant value, or where it will prevent expensive litigation between opposing factions within a family. The court will only grant an application for a statutory Will if it can be demonstrated that it is in the individual’s best interests. The court will also take into account that person’s past and present wishes and feelings, their beliefs and values, and other factors the court believes they would have considered, had they been able to do so.

We can advise whether an application for a statutory Will is appropriate. We can also carry out a full assessment beforehand, allowing us to put together an accurate estimate of the costs. Medical and accountancy evidence may be required in support of the application.

Speak to our wills solicitors

If you are concerned about your family member’s mental capacity in relation to making a Will, contact us sooner rather than later. We can assess your loved one to see whether he/she has sufficient capacity. If not, we can discuss the best way forward.

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