A person can only make valid will if he or she has testamentary capacity i.e. they must be able to understand the effect of the document, the value of their property and possible claims on the estate by members of their family.
If a person is incapable of making a will because they lack testamentary capacity, it is possible for a will to be made on their behalf, subject to the authorisation of the Court of Protection.  If a Deputy or attorneys have been appointed, they may make the application.  Alternatively, a person who would benefit under an existing will or the intestacy rules (e.g. spouse) can apply for a statutory will.
It may be necessary and/or desirable to change a will for many reasons, including the following:
• To incorporate Inheritance Tax planning if the patient’s assets are, or together with their spouse’s are, over the Inheritance Tax threshold (currently £312,000)

• It may be appropriate for further gifts to be included in the statutory will – for example gifts to additional grandchildren

• New executors may need to be appointed, perhaps because previous executors have died or have lost mental capacity

The procedure of applying for a statutory will is relatively straightforward although it does involve a lot of paperwork as the Court will request a lot of information and evidence to support the application, all of which we can assist with. 

The Court will try and ensure that the will gives effect to the likely wishes of the patient.  An attendance at the Court of Protection in London may be necessary although this is not always required.

Once the will has been approved by the Court, it can be signed by the person making the application.  It is then returned to the Court for sealing and will then be valid.

For further information, please contact Karen Law on 01943 885103 or email karen.goor@ridingslaw.com.