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Beviss and Beckingsale
Emma Northover

Can someone else decide what is in your Will?

Posted by Emma Northover on July 23rd 2013 in All , DISPUTES AND CLAIMS .

Everyone knows that it is important to make a Will and to keep it under review but like catching up with distant friends or grand plans to ... , life takes over and it gets forgotten about. Unfortunately, for some people not keeping their Will under review could pose difficult questions for their potential heirs during their lifetime.

For example, imagine the situation where an elderly lady has lost the ability to manage her own affairs and someone else - say her daughter - is now looking after her affairs under a Power of Attorney. Whilst the daughter is helping her mother she finds a copy of her mother's Will which provides for all of her estate to pass to her son. The Will was written before the daughter was even born but there is no later Will and so this Will would be her mother's last will if nothing was done. Whilst it is possible for the son and daughter to agree to vary their mother's will after she has died, you can only imagine the difficulties which may ensue if they do not get on.

In such circumstances an application could be made to the Court of Protection, for the Court to make a Will on the mother's behalf, if she no longer had the ability to make a Will for herself. This is known as a Statutory Will.

In the recent case of NT -v- FS and Others (2013] the law in relation to Statutory Wills was summarised. In this case a man lacked mental capacity to deal with his affairs, he had no valid Will but a handwritten document in his Bible headed his Will had been found - this document did not create a valid Will, even though he probably thought that it did. The Court emphasised that:

  • any decision must be made in the best interests of the person concerned;
  • it would look at all of the circumstances including any wishes or feelings expressed by the person concerned, but there was no presumption that those wishes should be implemented without considering all the relevant factors; and
  • it would consider the relevance of the person concerned as being remembered after their death 'as having done the right thing' by their Will.

Although it will no doubt be comforting to some people that there are provisions in place to enable such decisions to be made - even those as important as making a Will - if they are no longer able to make one for themselves, the sensible advice is to keep your affairs including your Will under constant review.

If you, or anyone you know has concerns about their Will or the Will of a loved one, or would like further advice about the applications which can be made to the Court of Protection, then please do not hesitate to contact Emma Nothover either on 01404 548050 or by email to eln@bevissandbeckingsale.co.uk.