Dear Judge: Do you see what I see** - how to get a statutory will

In some circumstances, a person who does not have testamentary capacity can have a court make a will for them.

Before embarking on a court application, there are a number of issues that need to be addressed including:

1. confirmation that the will maker lacks the required capacity;
2. a complete summary of the reasons for the application, together with details of all wealth of the will maker;
3. a comprehensive draft of the intended court ordered will;
4. details of any previous estate planning exercises the will maker was involved in, together with evidence about their intentions historically and what their probable intentions would be currently (but for the fact that they lack capacity); and
5. all details of the wider factual matrix, including whether there is any realistic prospect that someone may look to challenge the deceased estate.

Assuming all of the above issues can be addressed, the court will only approve an application in relatively limited circumstances.

Next week’s post will list out the exact steps the court applies in this regard.

As usual, please contact me if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the Hunters and Collectors song 'Do you see what I see?'.

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