The Mental Capacity Act 2005 sets out the current statutory scheme for execution of Wills by the Court of Protection on behalf of people who lack the capacity to make a Will themselves. The process of acquiring a statutory Will can be relatively inexpensive but the procedure set out by the Court of Protection must be followed. If you require legal assistance on statutory Wills, our probate solicitors are able to assist.
Section 16 of the Mental Capacity Act 2005 gives the Court jurisdiction to make decisions on behalf of people who lack the capacity to manage their property or affairs. The Court will only exercise its power to make a Will if it is persuaded that there are good grounds to depart from the testator’s existing testamentary arrangements (if any have been made).
The Court is most likely to execute a statutory Will where the person lacking capacity has never previously executed a Will or where there has been a significant change in circumstances which should be properly reviewed.
An application to the Court of Protection must be made in the person’s best interest and reflect where possible a patient’s past and present wishes and feelings.
The procedure for making a statutory Will is to apply to the Court of Protection for permission. However, if an applicant is either a deputy by previous appointment of the Court of Protection, a public guardian or official solicitor, permission is not required.
