When you need to make a statutory Will on someone else’s behalf

Sometimes, sadly but inevitably, it may be necessary to intervene to make or change a Will on someone else's behalf.

This may be because a serious brain injury, illness or dementia - and according to predictions there will be 1 million diagnosed dementia cases by 2025 - means an individual is not able to do this themselves.

Key criteria

You can apply when the person involved isn't able to understand what making or changing a will means, how much money they have or what property they own or how making or changing a will might affect the people they know (either those mentioned in the will or those left out)

When is it appropriate?

There are a number of scenarios we typically encounter at Wards Solicitors:

• When someone has never made a will and now lacks the capacity to do so;
• When someone has made a will in the past but has lost capacity since and there have been significant changes in the meantime. For example, a property specifically referred to in the Will has been sold;
• When someone has made a Will but the circumstances around its creation appear suspicious;
• When a young person has suffered a brain injury but needs to make a Will when they are 18, particularly where a large amount of compensation is involved.

Information needed for the Court of Protection application for a statutory Will

Much information needs to be collected and collated including:

• A copy of the proposed statutory Will;
• A copy of any existing Will or codicil
• A capacity report confirming the person involved lacks testamentary capacity;
• A list of the assets in the estate and current valuations;
• Details of related care needs, present and future;
• Details of the resources of any proposed beneficiary

Who needs to be told?

Once the Court of Protection application has been received it will send out a 'directions order' telling you what to do next and who must be informed (served) including, potentially, the person who the statutory Will is for.

Crucially, this includes, within a set timescale:

• anyone named in an existing will who would be affected financially, for example, they aren't a beneficiary in the new will;
• anyone who would be expected to benefit if the person were to die without a will ('intestate'), for example, family members;
• any other people named on your application;
• The Official Solicitor.

The role of the Official Solicitor

The Official Solicitor will act on behalf of the person who lacks capacity and will charge for their time in doing so.

They will look at all of the evidence and formulate a position statement and finalise the draft statutory Will after negotiating with the applicant and any other parties in the case.

The position statement and draft Will is sent to the Court of Protection and if all parties agree, the usual course of action is for the Court to rubber stamp the agreed statutory Will.

In some cases, usually where there is conflict between certain parties, there will have to be a court hearing. The Official Solicitor's costs and the costs of the applicant are almost always paid from the funds of the person for whom the statutory will is sought.

• For help and advice about Court of Protection, Deputyship and Mental Capacity issues including making a statutory Will, please contact our Wards Solicitors' Probate, Wills and Mental Capacity Team either by phone or by popping into one of our 11 local offices.