What happens if a relative is losing capacity, but hasn’t made a Will?

One of the most difficult aspects of caring for someone can be watching the decline in their mental faculties as time passes. What happens, though, when you suspect that a person you care for is losing capacity, but never got round to making a Will? You can apply to the Court to ask them to make a will on that person behalf.

The first thing to consider is whether the person is still mentally capable of making a Will. To be able to make a Will, a person must:

  1. Be able to understand that they are making a Will, and the effect of making the Will;
  2. Have a reasonable understanding of the nature and value of their estate;
  3. Understand who they want to inherit their estate and who they do not, and understand the consequences of including or excluding certain people; and
  4. Not be suffering from a disorder of the mind that influences their views on the above points. – This is not the same as a medical definition of a mental illness or disorder.

There are many cases where people retain capacity to make a Will, in spite of the fact that they struggle with certain aspects of their life. Every case is different and it is always worth considering carefully whether the person concerned still has capacity to make a Will. You should always encourage the person to draw up their own Will if possible. It is far cheaper and faster than applying to the Court for a Statutory Will to be approved.

Given the rising number of challenges to Wills, it is always a good idea to seek the opinion of a medical professional and have this recorded in writing if there are any questions about capacity at the time the Will is being drawn up. Your solicitor will be able to advise you whether in their opinion the person is able to make their own Will and also can advise on how necessary it is for a medical report to be prepared as a safeguard against challenge.

If a person does not have capacity to make a Will, you should provide a family tree to your solicitor, who will be able to advise you who would inherit the estate under the intestacy rules. It could be that the estate would pass automatically to the beneficiaries that the person would wish.

It is only in cases where the person’s estate would be given to someone they would not have wanted on intestacy, that an application for a Statutory Will should be considered. The process for making a Statutory Will starts with an application to the Court, which must be accompanied by a range of documents. Your solicitor will provide guidance on the documents required and the process to be followed.

As an applicant, you must be able to demonstrate that the proposed Statutory Will is in the person’s best interests. In particular, the Court will be interested in the following points:

  • What is the person likely to have done, if they were able to make their own Will?
  • Why might the person be expected to provide for the people named in the draft Will – This is especially important in cases where potential beneficiaries under the Intestacy Rules would be losing out;
  • The person’s beliefs and values;
  • How has the person acted and made decisions for themselves in the past?

Any person who would otherwise benefit from the intestacy rules can be joined as a party to the court proceedings and can submit their own evidence. It is ultimately for the Court to decide on the outcome.

If you are concerned that a relative or someone you care for may lack capacity to make a Will, when they have not already made one, speak to one of our solicitors for advice on 0161 6155554.