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Making a will in the Court of Protection

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Posted by Mitra Mann on 04 March 2014

Mitra Mann Senior Associate

Where a vulnerable person lacks the capacity to make a will, the Court of Protection may authorise a statutory will to be executed on their behalf. 

The Mental Capacity Act 2005 sets out the current statutory scheme for the execution of statutory wills in the Court of Protection. Of particular relevance is section 18 of the Mental Capacity Act 2005 which specifically provides that the decisions the Court of Protection may make in relation to the property or affairs of the vulnerable person include the execution of a statutory will provided that the vulnerable person is over the age of 18 years. 

What is testamentary capacity? 

Before anyone considers making a Court of Protection application for a statutory will, it is essential to establish whether the vulnerable person has testamentary capacity, that is, the capacity to make a will specifically. The test for testamentary capacity was established in Banks v Goodfellow (1870). The person making a will must be capable of understanding:

  • the nature and effect of making a will;
  • the extent of his/her 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 that influences the testator to make bequests in the will that he or she would not otherwise have included. 

Consideration should also be given to section 3 of the Mental Capacity Act 2005 which provides that a person is unable to make a decision for himself if he is unable to understand information relevant to the decision, retain such information for long enough to enable him to make a decision, use or waive that information as part of the process of making a decision or communicate his decision.

If a vulnerable person does not have testamentary capacity, then an application for a statutory will needs to be submitted to the Court of Protection.  

When can statutory wills be made?

There are many situations where a statutory will may be necessary, such as:

  • 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;
  • a beneficiary or beneficiaries under an existing will have passed away; or
  • a beneficiary under an existing will has already received substantial gifts and the will should be adjusted.

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

Who may apply for a statutory will?

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. 

What is “best interests”? 

The Court of Protection has to consider whether the decision to make a will on behalf of the vulnerable person is in their best interests. Section 4(6) of the Mental Capacity Act 2005 lists the factors the Court of Protection must consider, so far as reasonably ascertainable, when considering the execution of a will. The factors are:

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

The Court of Protection must also take into account, if it is practicable and appropriate to consult them, the views of:

  • anyone named by the vulnerable person as someone to be consulted on the matter in question or matters of that kind;
  • anyone engaged in caring for the vulnerable person or interested in their welfare;
  • any attorney of a Lasting Power of Attorney granted by the vulnerable person; and
  • any deputy appointed for the vulnerable person by the Court of Protection, as to what would be in the vulnerable person’s best interests. 

Prior to the Mental Capacity Act 2005, the Court of Protection gave a lot of weight to the “substituted judgment” test. The court would assess what the vulnerable person would have done had he had a brief lucid interval at the time the will was made. This test is no longer relied upon heavily. The vulnerable person’s wishes and feelings are not necessarily the deciding factor in working out their best interests and varies between cases. 

Who pays the legal costs? 

The general rule on costs, according to rule 156 of the Court of Protection Rules 2007, is that where the proceedings concern a vulnerable person’s property and affairs the costs of the proceedings shall be paid by the vulnerable person or charged to his estate.

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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