As a general rule if a person lacks mental capacity, then they cannot sign a Will.
An individual making a Will has to understand what it is they are doing and the extent of the assets being gifted. They must be aware of potential claims and be of sound mind at the time of signing the Will.
There may however be legitimate reasons why signing a Will would be in the best interests of the incapacitated person and a Statutory Will is the way to do this.
There can be various reasons for making a Statutory Will such as the person currently has no Will in place or their current Will makes inadequate provision for carers or other people in their life.
Making a Will in this way requires a detailed application to the Court of Protection for permission to allow another person (the applicant) to sign a Will on behalf of the incapacitated person.
Given that one of the fundamental conditions for signing a Will is that the person making the Will (the testator) has the mental capacity to do so, the procedure for overriding this and allowing someone else to do it for them is very complex.
The application for a Statutory Will begins with a formal medical assessment of the person’s mental capacity as proof that they lack the ability and understanding to make a Will themselves. A full breakdown of the person’s estate (such as property, investments and possessions) is required together with documentary evidence in support. Finally, a draft of the proposed Will and a statement by the applicant setting out the reasons for the Statutory Will are needed to complete the application.
In most cases, the Official Solicitor is appointed to represent the interests of the incapacitated person. Any beneficiaries under an existing Will or under the intestacy rules (where there is no Will) will be entitled to have their say about the application.
We can advise and guide you through the whole process from submitting the application to executing the Statutory Will.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.