Posted On / 14.04.2016

Creating a Will for Someone Who Does Not Have Mental Capacity

If someone has lost mental capacity, or perhaps never had it in the first place, is it possible to create a Will for them? This may be important where someone is born with learning difficulties, or suffers from a psychiatric condition such as paranoid schizophrenia, or loses capacity in old age when they develop for example Alzheimer's disease. If someone has perhaps grown old and lost their mental faculties, is it then too late?  

The short answer is that it is possible to apply to the Court of Protection for the Court to, in effect, write that person’s Will. This scheme is contained in the Mental Capacity Act 2005.  

Almost anyone can apply to the Court of Protection for such an order, including the patient (as which he will be referred to here) herself, anyone who has applied to be or has been appointed a Deputy, a beneficiary of an existing Will, any person who has been appointed as an Attorney under an Enduring Power of Attorney or a Lasting Power of Attorney, anyone for whom the patient might be expected to provide, and any other person with the permission of the Court.  

The Court will draft a Will with the aim of ensuring that it is in the patient's best interests. It might be asked how that can be assessed: why will the patient care and how can her best interests be assessed, given that the Will will be considered and put into effect only after she has died? The Court can, however, consider that what will live on after the patient's death is her memory, and for many people it is in their best interests that they be remembered with affection by their family as having done "the right thing" by their Will.  

In considering what is in the patient's best interests, the Court can look at all sorts of factors including the patient's wishes, particularly where they are not irrational, where they can be implemented and where they are not irresponsible. They will be looked at even though they are the wishes of someone who lacks capacity.  

The Court will also look at the patient's family and any obligations which the patient might have been expected, were he not unwell, to have borne in mind.  

There is no hierarchy of the various factors which the Court will consider. The Court may, however, spot one and decide that it is of "magnetic importance" in a particular case.  

The application is made to the Court of Protection. A witness statement supporting the application ought to contain or be accompanied by the following:  

  • The draft Will which the applicant would like the Court to approve.  
  • Copies of any previous Wills, perhaps with a table identifying specific events between each Will and changes to the Wills.  
  • A family tree.  
  • Information about the patient's life, character, beliefs, relationships, wishes and interests.  
  • A schedule of the patient's assets, liabilities, current financial needs and likely future needs.  
  • A discussion of the Inheritance Tax implications of the proposed Will.  
  • A report from an expert describing the patient's physical and mental health and commenting on their life expectancy.  
  • A copy of any registered Enduring Power of Attorney or Lasting Power of Attorney.  

When the application has been issued, the applicant will have to serve it on anyone who may be affected by a change in an existing Will if there is one, anyone who might inherit under an intestacy, anyone named in the application and the Official Solicitor.  

The court may approve the application on paper, reject it, ask for more information or fix a hearing, particularly if it is apparent from the witness statement that there is a disagreement within the family about what the Will should say.  

The applicant will have to pay his solicitor’s fees. In addition, there is a court fee of £400 to issue the application.  If the court lists a hearing, the applicant will have to pay an additional court fee of £500.  

In some cases, the Official Solicitor may appoint a lawyer to act as the patient’s litigation friend, to protect their interests. If that happens, the applicant may have to pay those costs too.  

The applicant may be able to claim reimbursement from the patient’s assets of any fees he has to pay.  

If the patient is thought to be at a high risk of dying soon, there can be an application for an interim or holding Will which can be put in place pending the hearing of the full application. This may be important, since the Court of Protection cannot make an order for a statutory Will once the patient has died.  

The procedure is an important part of providing for the patient’s financial well-being and protecting their interests, and is one that can be pursued in a fairly straightforward manner.  

An order by the Court is likely to be made without difficulty unless there are disagreements within the family as to what the Will should say. Where those disagreements do exist, the creation of a statutory Will can become as contentious as a disagreement over say the validity of a healthy person’s Will or what order should be made for reasonable provision under the Inheritance (Provision for Family and Dependants) Act 1975.  

Any application should be made with care and only following a proper consideration of all of the facts and available evidence, and with a weather eye on the way in which a dispute in relation to the statutory Will application may develop. If there is likely to be a dispute, consideration should be given to whether early steps can be taken to diffuse or lessen it in some way: that may pay dividends in the long run.

For more information please contact Peter Livingstone on 01935 846235 or email