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Someone can only make a Will if that person has ‘testamentary capacity’ which, broadly speaking, is the necessary faculty to understand:
- the nature and purpose of a Will;
- the size of their estate; and
- an appreciation of those named to benefit or those excluded from the Will.
Testamentary capacity is specific to making a Will, so someone may not have the capacity to manage their property and financial affairs, but could have the capacity to make a Will.
Frequently Asked Questions:
Can any person make or change a Will?
It depends on whether that person has ‘testamentary capacity’, as outlined above.
What happens if someone doesn’t have the necessary ‘testamentary capacity’ but wants to make or change their Will?
Where someone lacks testamentary capacity, a Will can only be executed if it is approved by the Court of Protection - and this is called a Statutory Will. If a Deputy is not already in place, an application will need to be made to the Court of Protection to appoint one before embarking on the application.
A Deputy is a person appointed by the Court to manage a person’s property and affairs, in the event the person lacks capacity to do this for themselves.
So a deputy can’t just make and sign the new Will on their behalf?
No. Section 20 of the Mental Capacity Act 2005 restricts any deputy from executing a Will on behalf of an individual unilaterally, so an application to the Court must be made for authority to do so and for approval of a Will.
How will the Court decide whether to approve the proposed Will?
The Mental Capacity Act 2005 stipulates that any decision taken on behalf of a person who lacks capacity must be done in their best interests, and this includes executing a Will. When the Court is considering the execution of a Will, they must consider whether the content meets the following:
• Their past and present wishes and feelings, and in particular, any relevant written
statement made by them when they had capacity
• Their beliefs and values that would likely influence their decision
How will I know when I should make an application to change it on their behalf?
Some of the reasons for creating or changing a Will are:
• The person has come into a significant amount of money, for example a personal injury award
• Inheritance tax planning purposes
• A person’s circumstances have changed, for example an individual would have wanted to include someone who’s been caring for them for years.