The importance of crafting a Will to ensure that your intentions are honoured upon death is well documented. But what about those unable to do so due to mental incapacity? Safeguarding their estate and the passing of any assets is no less crucial, but by the letter of the law lacking testamentary capacity is a major barrier to Will creation and would render it invalid. In these instances, what can be done?
Mental capacity
Predicaments surrounding mental capacity can arise from a diverse range of circumstances such as lifelong disabilities, tragic life-altering accidents, progressive illness or the grip of dementia.
But mental capacity is a broad spectrum, so the matter is not always so clear-cut. Capacity is decision specific which means that a person may still be able to make decisions about what they want to eat for dinner that night but may not be able to comprehend a high-value portfolio of assets.
Significantly, just because someone has a particular diagnosis, you cannot automatically assume that they lack the capacity to make their own Will.
For an individual to be said to have testamentary capacity they must;
- Understand the nature of making a Will and its consequences.
- Understand the extent of the property or assets of which they are disposing.
- Understand and value the claims of individuals who could anticipate receiving benefits from the Will, both those who will be included and those who will be excluded.
- Understand the impact of the distribution of the estate.
- Not suffer from any illness or delusions that may distort their sense of right or wrong, or that impedes them from using their better judgement to dispose of their property at will.
What happens when someone is found to lack testamentary capacity?
Practically speaking, there are two choices. You either do nothing and keep things as they are. This means that if the person previously had a valid Will in place (made before losing capacity), it would still take effect on their death. The intestacy laws will be followed if the person has never created a Will, meaning that the deceased’s relatives would receive their estate in accordance with the rules Alternatively, an application can be made to the Court of Protection to have a Statutory Will made on their behalf, for the Court to decide how their estate should be distributed upon their death.
A unique legal entity, the Court of Protection serves as a guardian for individuals unable to make informed financial or welfare decisions due to lack of capacity. Taking into account multiple considerations, the Court’s primary purpose is to safeguard the best interests of such individuals.
It will not be involved in every such decision, however. In situations where a deputy has already been appointed, they will be able to make certain decisions on behalf of the vulnerable person instead.
Yet, there are some circumstances in which the court must be involved, regardless of the presence of a deputy. This is primarily due to the fact that there are restrictions on what a deputy can lawfully do, therefore the Court of Protection must be consulted before making specific significant decisions, including;
- determining where the vulnerable person should live and making significant gifts from their estate (where there is a disagreement)
- drafting a Will on behalf of a vulnerable individual and signing it
Creating a Statutory Will
Applying for a Statutory Will through the Court of Protection requires careful consideration, as the process is both complex and costly. It should only be done through necessity, to ensure the individual’s best interests are at the forefront. Factors that may warrant such an application, include:
- An existing Will no longer echoes the individual’s intentions, or they have never made a Will before. This could be due to a change in their life circumstances, such as separation from a partner.
- A beneficiary (or beneficiaries) under an existing Will have predeceased the testator.
- A beneficiary under an existing Will has already received substantial gifts, and the Will needs to be altered to reflect this
- The estate’s value has fluctuated considerably (for better or worse);
- Tax planning strategies need to be implemented to ensure that the individual’s best interests are served, not merely those of their beneficiaries.
Occasionally, a legal representative may have to liquidate an asset meant as a distinct bequest in a Will to cover care expenses. In these cases, a Statutory Will application may be necessary
In all instances, the Court of Protection will encourage participation from the vulnerable person if this is possible. .
Considerations
In evaluating the legitimacy of a Statutory Will application, the Court of Protection adheres to a strict set of guidelines as outlined in Section 4 of the Mental Capacity Act of 2005.
Central to this assessment will be the individual’s historical and current preferences, their beliefs and core principles, and any documentation which indicates their former capacity. Furthermore, the Court examines what the individual would likely consider if they possessed decision-making abilities, guaranteeing a comprehensive and fair evaluation.
The opinions of those providing care for the vulnerable person as well as the recommendations of the Official Solicitor, who will be appointed to represent the protected party, regarding what would be in that person’s best interests may also be taken into account.
‘Best interests’ in this context needn’t be financial or physical, it could be as simple as considering the vulnerable person’s reputation or how they will be remembered after their death.
In the case of Re P [2009] it was found that having their ‘best interests’ at heart would mean that they were remembered by their family and as having done ‘the right thing’ in their Will, however, what the ‘right thing’ is for many is still a hugely contentious matter.
Whilst the desires and feelings of a vulnerable individual certainly carry significant weight when it comes to approving a Statutory Will, the Court of Protection must consider a broader scope of relevant circumstances.
In accordance with the Mental Capacity Act 2005, no one factor takes precedence over another. The gravity of each aspect depends upon the unique intricacies of each case, with the ultimate goal continuing to be the person’s ‘best interests’ whatever that may actually be in the context of that specific individual.
Should you have any queries or concerns regarding Statutory Wills, or require advice on the application process, please contact us for an impartial consultation.
