When someone doesn’t have the mental capacity to make their own Will, the Court of Protection can make a statutory Will on their behalf. The court may also appoint a deputy to look after their affairs.

This ensures the person’s financial affairs are looked after when they are at their most vulnerable, and when they die their estate is dealt with in a way they would have wanted.

As with any Will, however, disputes can happen. You might want to challenge a proposed statutory Will if you’re worried that:

  • It doesn’t reflect what the deceased would have wanted
  • The financial deputy is not acting in the person’s best interests
  • The person has capacity to make their own Will.

The financial deputy may be a family member, or someone else close to the protected person. They must always act in the best interests of that person. It’s important they don’t use the position as deputy for their own gain. If you’re concerned about a deputy’s behaviour, or about any part of the Will itself, we can help.

Our expert solicitors could help you:

  • Replace the deputy with a professional deputy (such as a solicitor)
  • Challenge the terms of the Will
  • Make a claim for financial provision if you haven’t been named in the Will (following the death of the person).

We have the largest Wills, Trusts and Estate Disputes team in the country and we’re experienced in dealing with disputes over statutory Wills and financial abuse. We work closely with our Court of Protection team to support you at every stage.

Call us today on 0370 1500 100 or fill out our online contact form and we’ll call you back.

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Statutory Will Disputes

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Frequently Asked Questions

What Is The Court Of Protection?

The Court of Protection is a specialist court that helps people who don’t have the mental capacity to manage their own affairs. The court makes decisions for them about their money, property, health and welfare, to ensure their best interests are protected.

The court can also appoint a Deputy to make these decisions on a more day to day basis. The Deputy is usually a close friend or family member, who must act in the person’s best interests and only make decisions that they think the person would have made themselves.

You must apply to the Court of Protection to appoint a Deputy, to make a statutory Will, or to amend an existing one. The court supervises the actions of a deputy and acts as a safeguard to check that the right choices are being made on someone’s behalf.

At Irwin Mitchell we have an expert in-house Court of Protection team, helping hundreds of people manage the affairs of loved ones who have lost mental capacity. In statutory Will disputes we work closely with them, drawing on their experience to provide a seamless service and give you the support you need.

Why Does Someone Need A Statutory Will?

To make a valid Will you must have what is called ‘testamentary capacity’. This means you must have the mental capacity to understand your will-making decisions and their effects.

If a person lacks testamentary capacity, they can no longer make a Will or make changes to an existing one. This could have a damaging effect on the distribution of their estate, for example if:

  • It’s divided up in a way they wouldn’t have wanted (especially under the rules of intestacy, which set out who inherits when someone dies without a valid Will)
  • New legislation affects previous tax planning decisions
  • There have been changes in circumstances – such as the marriage or death of a beneficiary or birth of a potential beneficiary which make the Will out of date.

Making a statutory Will allows loved ones to make a Will that reflects:

  • What the person would do if they were able to make a Will themselves
  • The person’s beliefs and personal values
  • How the person has acted and made decisions for themselves in the past.

If you’re worried a statutory Will does not reflect this, or that a financial deputy is not making the right decisions, we can help. Call today on 0345 604 4895 or fill out our online contact form and we’ll call you back.

What Does A Deputy Do?

When someone loses the capacity to make their own decisions, the Court of Protection may appoint a Deputy to manage their affairs. This will usually be a family member or close friend who knows the person well and can make decisions in keeping with what they would have wanted.

The decisions might be about the person’s finances, property, or even care arrangements and medical treatment. The Court will set out exactly what kinds of decisions the Deputy is allowed to make, depending on the individual situation.

If you are appointed as a Deputy to look after someone’s affairs, you might have to:

  • Manage their assets
  • Sell their house
  • File tax returns for them
  • Apply to the Court for a statutory Will.

As a Deputy, you are not allowed to:

  • Make or amend a Will on their behalf (only the Court can make a statutory Will)
  • Make large gifts of their money or pay for things for another person for example school fees for a grandchild (the Court can authorise this)
  • Put their property or money in your own name.

Being a Deputy comes with a lot of responsibility, and each decision must always be made in the person’s best interests.

If you’re concerned that a Deputy is abusing their power or making decisions that they shouldn’t, we can help. Call today on 0345 604 4895 or fill out our online contact form and we’ll call you back.

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