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Making a will if you lack capacity or have dementia

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Posted by Mitra Mann on 03 June 2020

Mitra Mann - Probate Disputes Lawyer
Mitra Mann Senior Associate

A will is an important document and a crucial way of protecting family members and loved ones.  It is a legally binding document which states who should receive your estate (such as your assets, property, investments, cash, etc) after you die.

Even though it is an important document, many people tend to put off making their will.  This is may be due to several reasons such as people not wanting to contemplate their death or they may simply think they do not need a will. 

It is often misconceived that one’s estate will automatically go to loved ones, so a will is not deemed necessary.  However, in reality, in the absence of a will, the law will decide who will receive your estate.  The rules of intestacy dictate who will inherit your estate and by how much. Depending on your circumstances, this may not be what you wish for.  For example, a partner you have co-habited with and for whom you would like to provide will not receive a share of your estate under the rules of intestacy.

This is why it is vital to take the time and put a will in place to ensure that the people of your choice receive your estate.

Making a will and testamentary capacity

Anyone over the age of 18 years can make a will (known as the testator) provided they are of sound mind.  In legal terms, the testator should have “testamentary capacity”, that is, the capacity to specifically make a will.  The test for testamentary capacity was established in the case of Banks v Goodfellow (1870) and includes having an understanding of the following:

  • the nature and effect of making a will;
  • the extent of their estate;
  • the claims of those who might expect to benefit from the testator’s will (both those included in the will and those excluded); and
  • the testator should not have a mental illness or a disorder of mind that shall poison their affections and influence them into making bequests they would not otherwise have made, if their mind had been sound. 

With an ageing population leaving substantial estates, it is becoming common for wills to be challenged on the grounds that the testator lacked capacity.  It is therefore important to record the testator’s understanding of matters at the time they made their will and, in some circumstances, it is advisable to obtain medical evidence of their capacity.

What if someone does not have the capacity to make a will?

Over half of British adults have not made a will.  Some may sadly find themselves in a position where they no longer have testamentary capacity as a result of developing a medical condition such as dementia or Alzheimer’s disease or have met with an accident which affects their brain function. 

If an individual lacks testamentary capacity, they will not be in a position to make a will.  This does not necessarily mean that it is too late for them and they have no option but to subject their estate to the rules of intestacy.  It may be appropriate, in some circumstances, to ask the Court of Protection for permission to make a will on behalf of the person who has lost capacity.  Such a will is called a statutory will and the Court of Protection has the power, under Section 18(1) of the Mental Capacity Act 2005 to authorise this.

The Court of Protection

The Court of Protection is a specialist Court set up to protect the interests of those who are unable make certain financial or welfare decisions because they lack capacity. 

Where an attorney or a deputy has already been appointed to manage the affairs of someone who lacks capacity, they have the power to make some decisions.  However, it is important to note that an attorney or deputy cannot simply go ahead and make a will on behalf of someone who lacks capacity. There are instances where the Court’s permission is required, regardless of whether an attorney or deputy exists, and making and signing a will on behalf of a vulnerable person is one such instance. 

Who may apply for a statutory will?

Applying for a statutory will is not as straightforward as giving instructions for a will and executing it.  It involves making an application to the Court, submitting evidence for the Court’s consideration and allowing the Court to make a decision as to whether the statutory will is in the vulnerable person’s best interests. 

Before an application is made to the Court of Protection, the Court’s permission is usually required. However, some categories of people are exempted from seeking permission.  They are:

  • the vulnerable person;
  • the donor or donee of a Lasting Power of Attorney;
  • an attorney under a registered Enduring Power of Attorney;
  • a deputy appointed by the Court of Protection;
  • persons who may become entitled to the vulnerable person’s estate under the rules of intestacy or under an existing will; and
  • a person for whom the vulnerable person might be expected to provide if they had capacity.

A concerned relative or a friend wishing to make an application will need the court’s permission before making an application for a statutory will unless they fall under the above categories. 

When should a Statutory Will be considered?

There are a few situations where a statutory will may be considered appropriate and/or necessary:

  • The vulnerable person has never made a Will before;
  • The Estate has reduced in value;
  • The Estate has increased in value, for example as a result of compensation awarded;
  • Tax planning purposes in some circumstances;
  • A beneficiary or beneficiaries under an existing Will has passed away;
  • A beneficiary under an existing Will has already received substantial gifts and the Will should be adjusted;
  • The vulnerable person’s wishes under an existing will have been frustrated as a result of an attorney selling a property that is subject of a specific gift.

The Court of Protection is most likely to allow a statutory will if the person who lacks capacity has never made a Will or there has been a significant change in their circumstances.

Factors which the Court of Protection will consider

Prior to the Mental Capacity Act 2005, judges applied the substituted judgment test.  In other words, the judge would assess what the vulnerable person would have done if they had a brief lucid interval at the time the will was made.

However, this test is no longer heavily relied upon.  The Court of Protection is now required to apply an objective test and assess whether the proposed statutory will is in the vulnerable person’s best interests.  When determining a statutory will application, the Court of Protection will try and encourage the vulnerable person to participate and will consider the checklist of steps to follow in section 4 of the Mental Capacity Act 2005 which include:

  • Identifying all relevant circumstances;
  • Taking into account the vulnerable person’s past and present wishes and feelings (and, in particular, any relevant written statement made by the vulnerable person when they had capacity); their beliefs and values that would be likely to influence the vulnerable person’s decision in question; and
  • Any other factors that the vulnerable person would be likely to consider if they were able to do so.

In addition to the above factors, the Court of Protection will take into account the views of those who are engaged in caring for the vulnerable person, the views of the attorney chosen by the vulnerable person or the view of the deputy appointed for the vulnerable person by the Court of Protection - as to what would be in that vulnerable person’s best interests.

One aspect of the best interests test is to take into account how the vulnerable person will be remembered after his death.  It was held in the case of Re P [2009] that for many people, it is in their best interests that they be remembered with affection by their family and as having done “the right thing” by their Will.  However, there have been differing views expressed in more recent cases as to the relevance of the vulnerable person “having done the right thing” by his Will. 

Balancing wishes

A vulnerable person’s known wishes and feelings will be of great importance.  However, they are not paramount.  That is not to say that the vulnerable person’s expressed wishes should be lightly overridden - they will be an important factor to consider but the Court of Protection must also have regard to other relevant circumstances and factors. 

There is no hierarchy between the factors listed in section 4 of the Mental Capacity Act 2005.  The weight to be attached to the various factors, including the vulnerable person’s wishes, will depend largely on the individual circumstances of the particular case. 

Final decision

Ultimately, the decision lies with the Court of Protection.  The Court must be convinced that authorising the execution of a statutory will is in the vulnerable person’s best interests and the Court may even end up approving a statutory will which is different to the terms initially proposed in the application. 

The vulnerable person therefore has no final say as to what will happen to their estate after they die.  This is why it is advisable for one to take control of their financial affairs in advance, at a time when they are of sound mind, and put a Will in place. 

Who pays the legal costs of a statutory will?

The costs of a statutory will application will generally be charged to the vulnerable person’s estate according to Rule 19.2 of the Court of Protection Rules 2017.  However, costs are at the Court’s discretion and the Court of Protection may depart from this general rule, particularly if a party has behaved unreasonably before as well as during the court proceedings.  It is recommended to seek legal advice before making an application for a statutory will.

About the author

Mitra Mann

Senior Associate

Mitra is a specialist in both, contentious probate and contentious court of protection work.

Mitra Mann

Mitra is a specialist in both, contentious probate and contentious court of protection work.

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