If an individual who lacks testamentary capacity requires a new will or a change to an existing will, an application to the Court of Protection for a statutory will will be necessary. There might be a few scenarios when this can happen, such as:
The vulnerable person hadn’t made a will before they lacked capacity
A change in the will is needed
The beneficiaries in the will have died and there are no arrangements for replacements
The vulnerable person has high value assets
Tax planning reasons
- A change in value of the assets
A standard will made by someone who lacks capacity can be challenged by others on the grounds of lacking testamentary capacity. Scenarios like this can occur when family or friends believe that the vulnerable person was coerced into signing something in order for particular beneficiaries to get financial gain.
Testamentary capacity is usually presumed by the courts unless evidence is provided to put it in doubt. The burden of proof then falls onto the individual stating that the vulnerable person did have capacity when the will was written.
Providing evidence for this type of case, for either side, can be complex and often requires in-depth medical reports.
Applying to the Court of Protection for a statutory will on someone else’s behalf has a few steps. There are a number of forms to fill out including:
- An application form – where you will explain to the courts what you are asking to do and your reasons for doing so
- A witness statement – where you will provide evidence supporting the application form
- An information form – including a medical report and a summary of assets
- An assessment of capacity form – providing evidence that the person in question lacks mental capacity
After you have completed all of the relevant Government forms, you will need to provide supporting information. This includes:
- A copy of the individual’s up-to-date will (not needed if there is no existing will)
- A copy of the new propose will or codicil
- A copy of any deputyship order
- Copies of any registered Lasting Power of Attorneys
- Details of the person’s assets, income, and spending
- Details of any executors
- The person’s family tree, including names and dates of birth
- An explanation as to why the applicant considers a statutory will to be in the best interests of the vulnerable person
Once you have sent these documents, you will receive a confirmation letter from the Court of Protection to tell you all of the documents have been received. You will also receive a “Directions Order” which will detail your next steps.