If you want to make (or change) a Will on behalf of someone who cannot do it themselves, then you have to make an application to the Court of Protection for a Statutory Will, asking the Court agree the terms and to authorise the execution of that Will.
This may be because, for example, the individual has had a serious brain injury or illness or because they have dementia. It may be because the vulnerable person has never made a Will before or their estate has reduced or increased significantly in value. A Statutory Will may be required for tax planning purposes or where a beneficiary (or beneficiaries) under an existing will has passed away, or has already received substantial gifts, and the Will needs to be adjusted.
You can apply when the person is not able to understand what making or changing a Will means, how much money they have or what property they own and how making or changing a Will might affect the people they know (either those mentioned in the Will or those left out).
The Court of Protection is required to apply an objective test to assess whether the proposed Statutory Will is in the vulnerable person’s best interests.
The only difference between a Statutory Will and any other Will is that a Statutory Will is authorised by the Court of Protection and signed by the deputy or attorney (appointed under a Lasting or Enduring Power of Attorney) of the person who lacks capacity.
It is important to remember however, that someone who has lost the mental capacity to manage their finances may still have the ability to make a Will. We will be able to advise you on this and if necessary, arrange for an Independent Capacity Assessment to be obtained. We can also make the Statutory Will application to the Court of Protection for you.