Making a Will is one of those things on everyone’s ‘To Do’ list. We all mean to make one but many of us never seem to get round to it.
Putting your own Will aside, have you ever considered whether a Will may need to be made on behalf of someone you know who does not have the mental capacity to make one for themselves??
It sounds like an odd notion – making a Will for someone else. However, if someone has insufficient appreciation or understanding to make a Will, the Court can consider an application for a Will to be made on that person’s behalf – this type of Will is known as a Statutory Will.
Examples of people who may require a Statutory Will to be made on their behalf include the following:-
- People who may have lost mental capacity to understand and manage their own affairs (for example, due to degenerative illnesses such as Alzheimer’s disease or dementia)
- Those with a learning disability who do not have the mental capacity to understand the implications of making a Will
- Those who have suffered a severe brain injury and have become mentally incapable of managing their affairs
Why make a Statutory Will?
The basic purpose of making any Will for most people is to allow them the freedom to leave any possessions, property or money that they have when they die to whoever they choose.
In order to make a Will, a person must understand the purpose of making a Will, and how their assets would be distributed to family or friends upon their death. A Will is therefore only valid if it is made by a person who has the mental capacity to understand what they are doing.
In cases where this mental capacity is lacking, making a Statutory Will can help to avoid the scenario where a person’s assets are given to someone they would not wish to benefit. For example, an unexpected inheritance, personal injury award or other change of circumstances may leave a person with significant assets. If that person is not mentally capable of making a Will, their assets are at risk of being distributed upon their death to family members who perhaps they are not in touch with or who they would not have wanted their assets to go to.
A person may not have sufficient mental capacity to make a Will, but may be capable of other financial decisions. Alternatively, family members of the person without mental capacity to make a Will may believe it to be in that person’s best interests that they have a Will stating how their assets are to be distributed on their death, for tax planning purposes for example or to avoid a situation whereby their assets are distributed unfairly.
How do I make a Statutory Will on behalf of someone else?
In order to have a Statutory Will made, an application needs to be made to the Court. The Court office that deals with applications is called the Office of Care and Protection. The procedure can be quite complex and therefore it is recommended that anyone making an application of this nature seek legal advice.
Many people are unaware of this opportunity. I have used Statutory Wills for a number of clients to protect their assets and to avoid obvious injustice.
If you would like any further information on this area, please do not hesitate to contact me on the form below or alternatively by email on firstname.lastname@example.org
Linda is a Partner in Francis Hanna & Co Private Client department specialising in estate planning, long term care issues and disputed wills. She was the first NI member of Solicitors for the Elderly, a network of specialist and passionate lawyers focusing on the increasing needs of our ever ageing population.
Linda is also a member of STEP (Society of Trust and Estate Practitioners) and is a frequent speaker to parent and carer groups on the subject of future planning to protect the interests of vulnerable and disabled family and friends.