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Loss of Mental Capacity. Can a Will still be made or amended?

Posted on 31st October, 2018

Can a Will be made or amended where somebody loses mental capacity?

As you will know Private Client Departments of Law Firms are always saying why clients should make a Will. Whether that is to ensure…

  • Your Family and loved ones are catered for
  • To avoid your estate being administered under the outdated and antiquated laws of intestacy
  • Tax Planning
  • Avoidance of litigation ensuing after your death

… or for many other reasons!

What can prove problematic however is what would happen if a person should make a Will for a reason such as the above but cannot due to a lack of understanding because of an impairment of their mental capacity.

The test for somebody to make a Will comes largely from a test in case-law that has been with us for some time now. The person making the Will needs to understand the nature and effect of the document that they are making, the extent of their property/estate and the extent of who may have a claim on their estate should they not bequeath anything to them.

A loss of mental capacity can often lead to a catastrophic change in the lifestyle and priorities for people. Therefore it may become more pressing to either make a Will or indeed to alter an existing Will as certain provisions in that Will may have become unsuitable as a result of the person’s illness and subsequent change in circumstances.

Unfortunately even if you act as an attorney under a Lasting Power of Attorney or Enduring Power of Attorney or as a Deputy under a Court of Protection Order you cannot make or amend a Will for the person.

Our solution to this issue is to make a Statutory Will application to the Court of Protection. The application is made to the Court and they will decide if making the Will is going to be in the best interests of the person who lacks mental capacity.

They will consider things such as the person’s legacy and the consequences of them dying with either no Will or subject to perhaps now unsuitable clauses in their current Will. The procedure however is not straight forward and the court may decide against the proposed statutory Will even if all of the family are in favour of it as the Will must be in their opinion in the person’s best interests.

An application for a Statutory will can therefore take some time and it is often best to get family agreement to the proposed Will. The process can also be costly with the fees of the Solicitor drawing matters up for you together with the fees of the Official Solicitor who is appointed by the court to effectively act on behalf of the person who has lost capacity.

If you would like any legal advice on Statutory Wills Jacksons’ Private Client Team in Newcastle Upon Tyne and Stockton on Tees will be able to assist. You can contact Andrew Steel on 0191 206 9620/ 01642 356 357 or on

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