Having the Capacity to make a Will

With any Will, the important starting point is whether someone has ‘testamentary capacity’ – this broadly requires a person to understand what making or changing a Will means; how much money they have or what property they own; and how making or changing a Will might affect the people they know (either those mentioned in the will or those left out).

A person must have testamentary capacity at the point when they provide instructions for their Will and ideally at the time the Will is signed and witnessed.

Just because someone is no longer capable of managing all their financial affairs this does not automatically mean they do not have capacity to make a Will. Families will probably need help from a solicitor and/or a doctor to establish this and it may be dependent on the complexity of the Will the person wishes to make.

If someone loses testamentary capacity without having made a Will, or their circumstances change substantially after they have lost testamentary capacity, they may need a Statutory Will to be made on their behalf. This requires an application to the Court of Protection.

If a Statutory Will is required, it will deal with all the same sort of considerations as a standard Will, such as Inheritance Tax planning and specific bequests. Everything in it has to be in the best interests of the individual for whom it is being made, and as far as possible will take into account any past or present wishes and feelings that the individual has expressed. Any relevant written statements made by the person when they still had capacity can be particularly useful.

The Court of Protection has to take responsibility for making a Statutory Will, and it does not do so lightly. The process usually takes much longer than making a normal Will, although it is sometimes possible to speed the process up if you can show that the matter is urgent because someone’s death is imminent. It will also be more expensive, involving a Court fee.