The Capacity to make a Will

In making a Will the capacity element is crucial.  

 

In order to have testamentary capacity,  an individual must understand :

 

The above threshold is often failed when an individual is diagnosed with dementia. Being diagnosed with this those not often mean a Will cannot be created, but simply means it will be advisable to get medical evidence that clearly states the individual still has the mental capacity to make a Will.

 

What this means is that, if anyone questions their Will in the future, there is evidence that they were able to understand what they were doing at the time of making the Will and had the mental capacity to do so.

 

If an individual is said not to have the capacity to make a Will,  an alternative option is to apply to the Court of Protection.

The court can grant permission to make a Will on behalf of the person who is said to have lost capacity, this type of Will are referred to as,  ‘Statutory Will’.

 

When deciding whether to allow the application to make a Will, the court has to consider whether making the Statutory Will is in the interest of the vulnerable person.

 

In doing so,  the court will take into account any past wishes or present wishes of the vulnerable individual as well as the views of those that care for the vulnerable individual,  their family any Deputy or Attorney.

 

If either you or a loved one is yet to make a Will or if you have any questions regarding capacity, please contact our dedicated solicitors in Enfield on 02034173859.