If it is deemed that a person does not have sufficient mental capacity to make a Will themselves, then that does not mean that no Will can be prepared. The Mental Capacity Act 2005 sets out the statutory scheme for the execution of a Will for the mentally incapacitated person. This scheme can be used if it is felt that any current Will or the rules governing where a person’s estate passes when there is no Will (called the rules of intestacy) are not providing for a person or charity that the mentally incapacitated person would, if they had capacity, make provision for. The procedure for a Statutory Will is set out in the Court of Protection Rules 2007 and allows for a person (usually a Court of Protection Deputy who is managing the finances for the mentally incapacitated individual) to apply for a Statutory Will to be made.
The rules confirm that supporting evidence is required to be put before the Court in the form of :
- A copy of any current Will or Codicil
- Confirmation of a current family tree
- Evidence that the person does not have mental capacity
- Proof of country of residence
- Consents to act by proposed executors
- Some explanation as to why the person may be expected to provide for the proposed beneficiaries put forward
- Details of the current assets and outgoings
- Details of any inheritance tax which is likely to be payable in the event of death
- A copy of the new draft Will or if more appropriate a Codicil
The process can take some time and there could be objections from those who would inherit either under a current Will or under the rules of intestacy.
The team at Slater Heelis have made many successful applications and are able to offer expert advice on a potential application.
For further information contact our private client team on 0161 672 1242.