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.
What is mental capacity?
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:
- Understand the information relevant to the decision at hand.
- Retain the information long enough to make a decision.
- Make a decision based on the information.
- Communicate the decision.
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.
What is a statutory Will?
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.
When can you make a statutory 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.
How do you make a statutory Will?
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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