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Can a will be written or updated for an individual who does not have capacity?

If circumstances change after making a Will, it can usually be updated to reflect the new circumstances. Typical reasons for updating a Will might include the death of one or more beneficiaries, an increase or decrease in the size of an estate or the sale of assets to pay for nursing care.

However, if someone has lost ‘testamentary capacity’ since making their Will, they will not have the mental capacity to update it to reflect the change in circumstances, so the Will is out of date.

Similarly, if someone does not have a Will at all, it may be that the default provisions that determine where their assets pass on death, called the intestacy rules, are inappropriate for their particular circumstances.

In these cases, it may be possible to use a little known procedure called the ‘statutory Will procedure’ by applying to the Court of Protection. This allows a Will to be produced on behalf of someone who is unable to make one themselves.

At Aaron & Partners, our specialist Wills team has considerable experience in navigating the complex application process and in helping clients to produce statutory Wills in a thorough and cost effective manner.

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Statutory gifts

The powers of attorneys or deputies are usually limited to the management of someone’s finances on their behalf. Substantial disposals or gifts of their assets can only be made with authority from the Court of Protection.

It may be appropriate to make gifts or disposals for tax planning purposes, or to provide financial assistance to a third party, if this would have been in accordance with the individual’s wishes.

Our experienced Wills, Trusts and Tax lawyers are adept at providing the expertise needed to make such applications to the court, so that disposals and gifts can be made smoothly and successfully.

Key Contacts

Clive Pointon

Clive Pointon

Partner | Head of Wills, Trusts & Tax | Deputy MLRO | Notary Public

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Lynda Richards

Lynda Richards

Wills, Trusts & Tax Partner

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