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Clarke & Son Articles

Statutory Wills

With an increasingly aging population, unfortunately there are often cases of elderly relatives with dementia who are unable to find or unable to remember whether they have made a Will. We often have clients who are unsure as to whether their relative’s Will has been lost. What should you do if you find yourself in this situation?

The first step we would advise taking is contacting a solicitor local to your relative to ensure that they do not hold a Will. If a search such as this does not result in a Will being found then you will need to consider a “Statutory Will Application”.

Sometimes a Will needs to be made on behalf of someone who does not have the mental capacity to make one for themselves. If somebody lacks the understanding required to make a Will, an application can be made to the Court of Protection for a Statutory Will to be made on their behalf.

The Court of Protection deals with applications which relate to anyone who does not have the required mental capacity to manage their own affairs. The court aims to ensure that the affairs of anyone lacking capacity are dealt with appropriately and fairly, and to ensure that no one takes unfair advantage.

Who can make the application? Anyone who is appointed as an Attorney under a Lasting Power of Attorney can apply to the court to make an application. If there is not a registered Lasting Power of Attorney then a Deputy will usually be appointed by the Court. The deputy will be responsible for managing the property and affairs of the person concerned and is also entitled to make such an application.

The application for the Statutory Will should set out all financial circumstances of the impaired person, as well as details of all family members. Details should be provided regarding the nature of each relationship, which will allow the court to anticipate who might expect to inherit something. Before the court makes its final decision it will appoint an Official Solicitor to view the application and provide an independent view. The solicitor can then make representations to the court to ensure the

Will is fair to everyone involved. Finally, a Will is approved and signed on behalf of the person who has lost capacity.

At Clarke and Son, we are able to provide you with further information about Statutory Will Applications as well as Wills and Lasting Powers of Attorney.

If you have a query or would like to book an appointment please get in touch with our First Contact team on 01256 320555 or email mail@clarkeandson.co.uk

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