There are a limited number of occasions when it may be desirable that
an adult who lacks mental capacity makes a Will or varies the
provisions of an existing Will. Where it is necessary to do so to avoid
an injustice a court may intervene to create a “Statutory Will”.
Because this interferes with the basic right to choose whether or not to
make a will and if so on what terms there are strict criteria that must
be met including:-
- – the court must be shown medical
evidence that the patient lacks the necessary capacity to make a Will.
The medical report must also set out the doctor’s prognosis as to
whether the patient may be expected to make a recovery and life
- – the application must be
supported by evidence as to the extent of the patient’s financial
resources, details of the patient’s family and dependants, details of
the patient’s own financial needs. Care and skill will be required in
preparation of the evidence and statements to comply with the Court’s
- – the court will require that anyone to be
affected by the proposed statutory will must be served and given notice
of the proceedings – including those who would otherwise stand to
benefit from the patient’s estate under an existing will or under the
The circumstances where such a draconian application will be
appropriate are rare but they may include where a patient has remarried
since his last will (thus revoking it) or where he has had a change in
his relationships. Furthermore assets intended to be gifted in an
existing will may have been disposed of. An application for a statutory
will can sometimes prevent injustice (save tax) or prevent the
necessity of later proceedings under the Inheritance Act.
If an application is to be made it should be directed to the Court of Protection.
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