Advanced Dementia? It might not be too late to make a Will

You may be surprised to learn that it is possible for someone with advanced dementia, severe and debilitating mental health needs, or even a person in a coma, to have a new Will made for them.

The Court of Protection oversees decisions for people who are medically certified as lacking the ability to make certain decisions for themselves. This Court is busy with a variety of decision-making on behalf of these patients, from end-of-life decisions such as the withdrawal of life-sustaining treatment, to the appointment of financial deputies who will take care of the property and financial affairs of the patient. One area of their jurisdiction is authorising “Statutory Wills”, if the Court believes that it would be in the best interests of the patient in all of the circumstances to have a new Will.

So what kind of circumstances would justify the making of a Statutory Will? Here are some examples:

1.  If there is no Will and the patient does not want their estate to pass under the intestacy rules on death, and there is good evidence of what the patient’s current or past wishes and feelings are;

2.  If there is a Will from a time when P did have full mental faculties, but that Will is out of date and does not reflect more recent wishes and feelings, which are consistent and strongly held;

3.  If there has been a significant change in family circumstances, such as P having got married since last making a Will (marriage revokes a Will) or having been a victim of financial abuse by someone who stands to inherit P’s estate;

4.  If there is a significant change in financial circumstances, such as receiving a large inheritance or a lottery win, which distorts the intentions of the previous Will or causes tax issues which ought to be examined;

5.  If there is a flaw in an earlier Will, causing it to be invalid or manifestly unfair. For example, it is not uncommon (although inadvisable) for people to leave a specific item – e.g. a valuable diamond ring or even a house - in their Will to one child and the remainder of the estate to another child.  If the Will has not been drafted carefully, and the ring or house has been sold, the first person would receive nothing.

There may be other good reasons that the Court would authorise a Statutory Will too, but be warned that these applications can get very expensive, especially if not everyone agrees with the proposals! It is necessary to notify everyone who has a close relationship with P, and to involve everyone who has a material interest in the outcome of the application. The Court has power to direct that the Applicant – or any other party - pay the costs of the application if they have behaved unreasonably. Otherwise, the costs of all parties involved (including the “Official Solicitor” who is appointed to represent the patient themselves) come out of the patient’s estate. 

Genevieve Powrie qualified as a Solicitor in 2009. She is a fully accredited member of Solicitors for the Elderly (SFE) with special expertise in Court of Protection work, capacity issues and care fee funding advice. She is an active member of local legal committees (Cheshire and Staffordshire Branch of SFE; Macclesfield and East Cheshire Law Society), is on the Board of Trustees for Age UK (Cheshire East), and is also a member of the Court of Practitioners Association.  Genevieve offers clear advice with excellent client service. SAS Daniels LLP is Lexcel accredited and is a growing, multi award winning firm.