In England and Wales, the Court of Protection has the power to make a decision on a person’s behalf regarding their property and affairs, if they lack the capacity to do so (using the test for capacity set out in the Mental Capacity Act 2005).

The Mental Capacity Act expressly states that the Court of Protection can order that a will (or codicil) can be executed on behalf of a person lacking capacity. This is known as a ‘statutory will’. While the court has this power, no-one else does, so that a will executed by a person’s attorney or deputy without the court’s approval will not be valid.

When is it appropriate to ask the court to make a will on somebody’s behalf?

There are a number of circumstances where this would be necessary or desirable; for example:

• Where someone has not made a will before they lost capacity and the intestacy rules would not make appropriate provision for their family and dependants;
• Where someone has made a will but their circumstances have changed, so the will no longer makes appropriate provision for their beneficiaries; and/or
• Where there are doubts about the validity of a will made by the person before it was confirmed that they no longer had capacity, and it is thought desirable for the court to make a further will in their lifetime, which may help avoid litigation after their death.

Who can make an application to the court?

Anyone can make an application, although most are made by a person’s appointed attorney or deputy, a beneficiary under an existing will or the intestacy rules, or someone seeking to become a beneficiary under a proposed statutory will.

How does the court make its decisions?

Once the court has established that a person does not have capacity, then it will consider whether or not to make the statutory will on their behalf.

It applies the same criteria as any other decision relating to a person’s property and affairs, and asks whether it would be in that person’s ‘best interests’ to execute the will on their behalf.

In reaching a final decision the court will take into consideration a variety of matters, including evidence of a person’s past wishes and feelings, their testamentary intentions and the views of their friends and family.

Mark Lindley TEP is a Partner in the private client team at Boodle Hatfield LLP, specialising in disputes relating to wills, trusts and mental capacity