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A Will is one of the most important documents anyone can make. It lets people know what you want to happen to your money, possessions and property after you die (known as your estate). If you don’t leave a Will, the law decides how your estate is passed on – and this might not be in line with your wishes.

A Will can be quite a straight forward and simple document but must be made in line with certain formal requirements to be valid. Also, the person making the Will must have ‘testamentary capacity’ – but what does this mean?

‘Mental capacity’ is the ability to make a specific decision at the time that it needs to be made. A lack of mental capacity is when a problem of the mind or brain stops a person making a specific decision when they need to.

There are slightly different tests for mental capacity depending on the type of decision being made. The mental capacity to make, amend or cancel (revoke) a Will is called ‘testamentary capacity’.

Broadly, this requires a person to understand:

  • what making or changing a Will means;
  • how much money they have or what property they own;
  • how making or changing a Will might affect the people they know (either those mentioned in the Will or those left out); and
  • to not be suffering from a delusion that affects their instructions.

A person must have testamentary capacity at the point when they provide instructions for their Will and ideally at the time the Will is signed and witnessed.

Just because someone is no longer capable of managing all of their financial affairs this does not automatically mean they do not have capacity to make a Will. Families will probably need help from a lawyer and/or a doctor to establish this and it may be dependent on the complexity of the Will the person wishes to make. Often, the main barrier to overcome is for the lawyer and doctor to speak or communicate with the person in a way they best understand – not the technical jargon that can sometimes be used.

If someone loses testamentary capacity without having made a Will, or their circumstances change substantially after they have lost testamentary capacity, they may need a Statutory Will to be made on their behalf. This requires an application to the Court of Protection.

If a Statutory Will is required, it will deal with all the same sort of considerations as a standard Will, such as Inheritance Tax planning and specific gifts. Everything in it has to be in the best interests of the individual for whom it is being made, and as far as possible will take into account any past or present wishes and feelings that the individual has expressed. Any relevant written statements made by the person when they still had capacity can be particularly useful.

The Court of Protection has to take responsibility for making a Statutory Will, and it does not do so lightly. The process usually takes much longer than making a normal Will, although it is sometimes possible to speed the process up if you can show that the matter is urgent because someone’s death is imminent. It will also be more expensive, involving a Court fee.

This article has been produced by Francesca Tubb of Ashtons Legal Solicitors

Francesca specialises in advising and acting for vulnerable and elderly clients and aspects of mental capacity. Francesca prepares and advises on Deputyship and other Court of Protection applications (including Statutory Wills and Gift applications) and provides guidance for deputies and attorneys in carrying out their roles.

Francesca is an associate member of Solicitors for the Elderly (SFE) having completed both the SFE OCCP and OCLP award. She is a Dementia Friend and has also completed several professional development courses in probate and estate administration, mental capacity and wills. Francesca is a member of the STEP Special Interest Group for Mental Capacity and Cross-Border Estates.

Brain Injury Group member firm Ashtons Legal Solicitors have offices in East Anglia but serve clients Nationwide.

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