Recent research conducted by Censuswide, on behalf of The Association of Lifetime Lawyers, shows that over half (52%) of UK adults over 30 don’t have a Will. This creates another challenge if someone loses mental capacity before they have written a Will. This article explores the rules of intestacy, testamentary capacity and statutory Wills.
How will an estate be distributed if there is no Will?
When someone dies without a valid Will, their estate is distributed according to the rules of intestacy.
These legal provisions favour certain family members, irrespective of their relationship with the deceased. Couples who are not married are in a civil partnership would not automatically inherit under these rules.
However, there are processes to challenge this, but it is expensive and can come at an emotional and mental cost and can take time to complete. In broad terms, the intestacy rules may not accurately reflect how someone might wish to distribute their estate.
What happens if someone made a Will, but it is no longer appropriate?
It is possible that an existing Will no longer reflects the wishes of the person, or their circumstances have changed since making the Will.
Common reasons for changing a Will include breakdowns in relationships, the death of a beneficiary, a change in circumstances of the beneficiary or a change in family dynamics (e.g. marriage, divorce, children or the arrival of grandchildren).
Failing to keep your Will updated can lead to unintended consequences. For example, former spouses may still inherit under an outdated Will or new family members may be excluded altogether. Our article When life changes, should your Will? explains the key moments to review your estate planning to ensure your wishes are properly carried out and your loved ones are protected.
What if a person lacks testamentary capacity?
If a new Will is deemed appropriate (whether or not the person has made one previously) and that person loses the mental capacity to make or update a Will, an application for a statutory Will would be required.
What is a statutory Will?
A statutory Will is a court-approved Will made on behalf of someone who lacks mental capacity, but the application process is often costly, complex and requires substantial evidence about the person’s circumstances, wishes and best interests.
The Court of Protection will assess whether a statutory Will is necessary, ensuring it reflects what the person would likely have wanted.
If you’re concerned about a loved one’s capacity to make or update their Will, it is advisable to seek a professional assessment. You will need to collect existing Wills, financial information and details about family relationships to support any legal application, but this assessment can help clarify whether the person has the necessary mental capacity.
Keeping your affairs up to date
Having open conversations with your family about your wishes can help prevent confusion and disputes regarding your wishes should you lose mental capacity, but events such as ‘Update Your Will Week’ also serve as a valuable reminder of the importance to keep your estate planning up-to-date and the need to carry out regular reviews.
How can Morr & Co help?
If you would like to discuss making or updating your Will please do not hesitate to contact our Private Client team by emailing info@morrlaw.com or calling us on 01737 854 500
