How Does A Client With Learning Disabilities And Who Lacks Capacity Make A Will?

Wills and the intestacy rules

You cannot make a will until you reach the age of 18. If you don’t have a will when you die, the intestacy rules apply. These rules state which of your family members will inherit your estate and in what shares.

Under the intestacy rules, if a child under the age of 18 dies, their estate passes to their parents in equal shares. These rules apply even if one parent has never been involved in the child’s life.

Capacity tests

There are many different mental capacity tests. Some examples are capacity to:

• Give consent to medical treatment
• Manage your finances
• Make a will.

The test for capacity to make a will is known as the test for testamentary capacity. The broad rule for this test is that you must:

• Understand what a will is
• Have some understanding about what you own
• Understand who you have a financial obligation to.

Lack of capacity

If you lack capacity to make a will, the only option is to apply to the Court of Protection for the court to approve a will on your behalf.

The court will require:

• information about the client’s circumstances and assets,
• a formal capacity assessment
• a draft will,
• details of who would benefit under the intestacy rules,
• Inheritance Tax calculations,
• a family tree and
• a schedule of income and expenditure.

The court will appoint the Official Solicitor (OS) to act for the client. The usual process is that the client’s representative then negotiates with the OS over the terms of the will.

The client has to serve the application on all the beneficiaries who would have inherited under the intestacy rules and they are entitled to make representations to the court.

The OS must ensure that the terms of the will reflect what the client’s wishes and feelings would be if they had capacity.

If you would like to seek professional and legal advice on Mental Capacity & Deputyships, please contact our Mental Capacity & Deputyship solicitors to discuss further your personal circumstances, call us today on 0808 291 2013 or request a call back at your convenience.