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What to do if someone you love loses capacity & there is no will

View profile for Katie McCaughin
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For many people making a will is daunting task.

It may not be something you want to consider when you are feeling fit and healthy. Many people may delay preparing a will until later on in life.

But what happens if you lose capacity and can no longer make a will?

Standard Position

If you die without a will your estate will be distributed in accordance with the intestacy rules. This can cause the following problems:

  • If you are cohabiting your partner is not legally entitled to anything when you die.
  • If you are married your spouse may inherit most or all of the estate. Your children may not receive any of the estate.
  • The amount of inheritance tax payable may be higher

It is therefore important to make arrangements as early as possible.

If you lose capacity before making a will- a statutory will could be considered:

If somebody loses capacity because of dementia etc. it is possible to make an application to the court for what is known as a Statutory will.

An application can be made to the Court of Protection to authorise the execution of the will. The Court of Protection will consider best interests and will consider past and present wishes and feelings.

Recently the firm has dealt with a case whereby the client has delayed making a will and has now lost capacity. We are currently in the process of applying for a statutory will.

If you need assistance with preparing a will or applying for a statutory will then please contact us on 0207 095 5700.