Writing and finalising a Will is something many people put off. However, once someone has been diagnosed with dementia, there will come a time when they won’t be able to write one for themselves or even have a say in the matter. Failing to write a Will could see your property divided up by the laws of intestacy, so it’s crucial to sort one out when you can. But what do you do if you no longer have mental capacity?
In these cases, there is an answer, and it’s known as a Statutory Will.
A Statutory Will is made when someone who lacks capacity needs to either create a new Will or update an existing one. Someone who lacks capacity cannot write up a normal Will, as one of the legal requirements for making a Will is to have the mental capacity to understand the decisions being made. Attempting to do so will allow the Will to be challenged and nearly always overturned on the grounds of lack of testamentary capacity.
Even though a regular Will is out of the question, a Statutory Will can be made with an application to the Court of Protection. The Court of Protection is designed to protect the interests of the people who don’t have the mental capacity to make these kinds of decisions, and it allows the formation of a Statutory Will made on behalf of someone without capacity.
There are many different circumstances in which a Statutory Will needs to be made. It could be as a result of an accident that caused a serious brain injury or illness, or perhaps because they have dementia or another degenerative brain diseases.
To start with, a medical professional may need to sign off saying that the individual in question does in fact lack adequate mental capacity. Then, to make the Statutory Will or make changes to an existing Will, you need to complete an application form, make a witness statement and then attend a hearing if the Court of Protection requires it.
Once the Court of Protection has agreed that the Statutory Will can be put in place, you will need to sign the Will, have it witnessed in the same way as you would with a normal Will (by two people who do not stand to benefit from it) and then send it to the Court of Protection to have it ‘sealed’. This means that the Court puts their seal on it to authorise it.
Note that the writing of a Statutory Will is similar to that of a normal Will, which means that the normal, complicated processes apply. Consider seeking advice on how to write a Will from our specialist Wills and probate solicitors, to prevent any costly mistakes.
The process can be lengthy as well as costly as the Court of Protection must take into account the best interests of the person involved rather than trying to work out what they would have wanted. If it is possible to include the person in question by asking their views and wishes, it is a good idea to do so.
There is a fee of £385 to make a Statutory Will, and additional costs can accumulate for any extra necessities. This includes a hearing fee (including telephone hearings) of £500, any fees relating to having a litigation friend (someone to represent the person who lacks capacity at the hearing) or the use of counsel at the hearing (barristers).
The cost of making a standard Will can be as little as £100, which is why it is so important to try to make a Will while you have the capacity to make one rather than waiting and having to make a Statutory Will. We know it may be tempting to try and write one yourself, but the precise language required means that the smallest mistake can render the entire Will null and void. Therefore, it’s best to look to specialist probate solicitors like us to help you write one.
If you would like more information on making a Statutory Will or information on how to make a Will after a diagnosis of dementia, please call our experienced team on 0208 520 4555 or contact us online and we’ll be happy to help you.
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