‘Testamentary capacity’ means a person’s legal and mental ability to make or change their Will.

If someone has testamentary capacity, that means they have the mental ability to make their own decisions about the gifts and arrangements in their Will.

If they did not have testamentary capacity when their Will was written, because they were incapable of making informed decisions, their Will is invalid.

There are different kinds, and degrees, of dementia. Just because someone has been diagnosed with dementia, it doesn’t automatically mean they are incapable of making decisions about who should benefit from their estate in future. They may still have testamentary capacity.

However, they should have professional support to make their Will, to make sure it is legal and valid as well as being a true representation of their wishes.

There is a specific test which is applied to assess whether someone has testamentary capacity to make a Will. The test (in broad terms) looks at whether the individual understands what making a Will means and its effects, whether they’re aware of the extent of the assets that they own and of which family members and friends might expect to benefit from their estate. Where capacity is doubtful, this test should be applied by a medical professional who should be given details of the test.

The only difference between a Statutory Will and any other Will is that a Statutory Will is authorised by the Court of Protection and signed by the Deputy or Attorney (appointed under a Lasting or Enduring Power of Attorney) of the person who lacks capacity.

A Statutory Will may be necessary if a person has never made a Will and now lacks the testamentary capacity to do so or has an outdated Will

If the person does not have a Will, the rules of intestacy will apply on their death; these rules set out how their assets should be divided. The intestacy rules are sufficient for many people.

For example, Arthur does not have capacity to make a Will and has never made one. He is a widower with three adult children. On Arthur’s death the intestacy rules mean that his assets would be divided equally between his children. In these circumstances it’s unlikely that Arthur would need a Statutory Will.

However, if, for example, Arthur had no blood relatives, but had two step-children that he had always treated as his own, on his death his assets would potentially pass to the Crown. In those circumstances it may be appropriate to apply for a Statutory Will for Arthur so that his step-children could benefit from the estate.

In other cases, an existing Will may be very out of date (perhaps all the beneficiaries have died) so an application for a Statutory Will would be appropriate. Sometimes the court will also sanction a Statutory Will for tax planning purposes

A normal uncontested application (where there’s no objection to the proposed Will) would normally take about four to six months depending on the court’s workload. Urgent applications can be made if there’s a good reason for them, such as the person lacking capacity only having a short life expectancy.A normal uncontested application (where there’s no objection to the proposed Will) would normally take about four to six months depending on the court’s workload. Urgent applications can be made if there’s a good reason for them, such as the person lacking capacity only having a short life expectancy.

There is a court fee payable of £365 and an additional fee will be charged for medical evidence. If we are appointed to act our fees would be determined by the court; in a straightforward application we would expect our fees to be somewhere in the range of £3000 to £4000 (exclusive of VAT) which would be payable from the assets of the person who lacks capacity. We would give you full details at the outset.