For a will to be valid, the person making it must have the mental capacity to understand what they are doing and the consequences. Sometimes, for instance in Alzheimer’s cases, it is apparent that a person is not able to make a will for themselves.
In these circumstances, a person may die without leaving a valid will and their estate will be subject to strict intestacy rules which give specific amounts to spouses, children, siblings etc. Depending on circumstances, the distribution of the estate in accordance with these rules may not appear fair and reasonable, and could result in drawn out legal battles with people trying to claim more than they receive, resulting in the value of the estate being diminished. To avoid this, the s18 of the Mental Capacity Act 2005 allows an application to the Court of Protection to make a will on someone else’s behalf, so long as it is in the best interests of the person who has lost capacity.
In a recent case, it was decided that an undated and un-witnessed document from the 1980s which was believed to valid will be the person who had now lost capacity was not of ‘magnetic importance’. The estate was estimated to be worth between £1.5-£1.7M. The person was now living with a partner who had acted as primary carer since 2006 (but under intestacy rules would not be entitled to anything from the estate as they were not married). The court awarded her 35% of the estate upon the man’s death, with the rest being split between family.
Andrew is a Commercial & Employment Law solicitor in Leicester. Our Solicitors in Leicester are experts in their fields and dedicated to quality client care. If you would like to find out more about our solicitors in Leicester please contact us.
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