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What can you do if someone you love loses capacity and hasn’t made a will?

An Introduction to statutory wills

We are often approached by family members and attorneys wanting to know what to do if their loved one has not made a will, or has one that is many years out of date. Many people are surprised to learn that an attorney acting under a Lasting Power of Attorney, or a Deputy appointed by the Court of Protection CANNOT make or amend a will on someone else’s behalf, even though they have legal authority to manage their financial affairs.

Whilst we all know how important it is to do a will and keep it under review, it’s easy for this to get missed, particularly when someone is unwell, and all the focus is on providing ongoing care and support.

However, the Court of Protection can give legal authority to enable someone to execute a will on behalf of someone who has lost the capacity to make one themselves.  This is called a statutory will.

Authorisation for a statutory will is made under the Mental Capacity Act 2005 which places the incapacitated person at the centre of any decisions that are made about them or on their behalf.

An application to the Court of Protection will need to involve the incapacitated person as much as possible to ensure that authority granted by the Court for a new will is in that person’s best interests and what they would have wanted.

We can help

You won’t be surprised to learn that making a statutory will application is not straightforward!  It is so important to put forward the best possible case to further the incapacitated person’s wishes.  Here at Moore & Tibbits we have a specialist Court of Protection team and our Senior Solicitor, Marie O’Malley has a wealth of experience submitting successful statutory will applications and can advise and support you throughout the process.

Following Peter’s wishes….

Peter had always been meaning to make a will, but never quite got around to it.  He wanted to leave his estate to his step-children, who had become his main carers since the death of his wife three years ago and had gone so far as to getting a do-it-yourself will making pack.

Sadly, following a sudden illness, he lost the capacity to make a will.  His estate would therefore be distributed according to the intestacy laws which meant that distant relatives whom he had not seen for years, would be the beneficiaries.

We submitted a detailed application to the Court of Protection requesting permission to execute a statutory will on Peter’s behalf, including evidence of his previous plans to make a will and the strong bond that he had with his step-children. 

The Court authorised a statutory will which ensured that Peter’s wishes were followed, even though he was unable to carry them out himself.


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Marie O'Malley
Senior Solicitor

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