Can you make a Will if you don’t have the mental capacity?

No, you must have the mental capacity to make a Will for it to be valid and legally binding. However, someone can make a Will on your behalf if you lack mental capacity by applying to the Court of Protection. This is called a statutory Will.

Mental capacity refers to a person's ability to independently make decisions based on their understanding of a situation, the options available to them, and the implications of those choices. So, a person has mental capacity if they can do the following:

Mental capacity is decision-specific meaning each decision must be taken into account as a matter in and of itself, and past mental capacity assessments cannot be used to draw conclusions about a person's present ability to make a decision. For instance, a person may have the mental capacity to make simpler decisions, such as what to wear each day, but may lack the capacity to make big decisions.

A statutory Will is a Will approved or made by the Court of Protection on behalf of a person who lacks the mental capacity to do so. A lack of mental capacity to make a Will may be a result of dementia, a severe brain injury, or an illness. A statutory Will is legally binding just like a regular Will.

You can make a statutory Will if an individual is unable to understand what making or changing a Will entails. Therefore, if a person who lacks mental capacity wishes to make a new Will or make changes to an existing one, you can apply to the Court of Protection to be able to make a statutory Will.

A statutory Will can also be made if a person is unable to understand how much money they have or the extent of the property they own. It is also necessary if a person is unable to understand how creating or amending a Will may affect the people they know, both those included in the Will and those who are not.

You will need to download and complete the application form, witness statement, information form, and assessment of capacity form in order to apply to make a statutory Will on a person's behalf. You need to send the completed forms to the Court of Protection. The Court of Protection will send you a letter to confirm that your application has been received. After this, the court may decide that a hearing is required. Once the application is approved, you must sign two copies of the statutory Will, which will then be sealed by the Court of Protection.

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