Statutory Wills – Safeguarding the Wishes of Those who Lack Capacity

A testator (the individual making a Will) must be over 18 years of age, have the required intention and capacity to make the Will and comply with the execution formalities as laid out in the Wills Act 1837.

The issue of capacity has long been debated in the English courts, leading to a number of judicial decisions being consolidated in the Mental Capacity Act 2005.

If the testator’s mental capacity is questionable, their ability is assessed (usually by a medical practitioner) in accordance with an old 1870’s case, which states that capacity means soundness of mind, memory and understanding. The testator must understand: 

1. The nature of the act he or she is about to perform and its broad effects
2. The extent of his or her property, and
3. The moral claims he or she ought to consider. For example, who the potential beneficiaries are, what their expectations may be and the effect of the Will on those people.

If a medical practitioner confirms that an individual lacks testamentary capacity, the individual’s wishes can still be safeguarded by applying to the Court of Protection for permission to make a Statutory Will.

Other reasons for making a Statutory Will maybe to mitigate inheritance tax or avoid the individual dying intestate.