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:-
- Medical evidence – 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 expectancy.
- Supporting evidence – 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 requirements.
- Notice – 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 intestacy rules.
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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