Q&A If someone loses capacity without making a Will, will they die intestate?

Q:      My brother suffered a severe stroke in his 30s whilst playing football and may have permanent brain damage. Like many his age, he did not have a Will or a power of attorney. He was separated from his wife, with two children. My parents are currently taking care of his household bills etc, but in view of his prognosis I feel arrangements for his care, and provision for his children, need to be formalized, not least as I believe under the rules of intestacy his wife could inherit from him if he dies.

A:       The Court of Protection can make decisions for people who lack capacity to make their own decisions and can appoint deputies to make ongoing decisions about the financial affairs and welfare of people who lack mental capacity and have not put in place of Lasting (or Enduring) Power of Attorney. The Court cannot, however, make or update a Will for someone who has lost capacity. In these circumstances an application must be made for an Order to make a Statutory Will.

The application for a Statutory Will requires a great deal of information. The Court usually asks for copies of a Family Tree, any existing Will or Codicil, a detailed witness statement from the applicant, a proposed draft Will, a schedule of capital assets held by the person who has lost capacity, summaries of that person’s average income/expenditure and inheritance tax position, and other relevant documents. Following the application, the Court will contact everyone affected by the proposed Will to have their say, and it will want to be satisfied that its final decision is in the best interests of the person who has lost capacity.

Given the complex nature of a Statutory Will application it is advisable to seek assistance from a specialist Court of Protection solicitor. Sadly, your brother’s situation highlights why every adult should make a Will, as age does not necessarily play a part in what life throws at us.

This question has been answered by Jessica Wright, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients.  Where possible, we ask that you communicate with us by phone or email. If you have a new enquiry or for an appointment visit www.ghplegal.com or contact one of our offices: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194 

Jessica Wright

Jessica Wright


Part of our Probate, Wills, Tax and Trusts team in Oswestry.