Q&As

Can a deputy make a Will on behalf of P and if not, what is the jurisdiction of the Court of Protection and the relevant procedure for a Statutory Will?

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Published on LexisPSL on 26/05/2017

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • Can a deputy make a Will on behalf of P and if not, what is the jurisdiction of the Court of Protection and the relevant procedure for a Statutory Will?
  • Testamentary capacity required to make a Will
  • Restriction on deputies to make a Will on behalf of P and the Court of Protection’s jurisdiction to make a Will on behalf of P

Testamentary capacity required to make a Will

In order to make a valid Will, the testator must satisfy a capacity test on two separate occasions:

  1. when they give instructions for the drafting of the Will or at the time it is written or typed out by the client themselves

  2. at the time of executing the Will

If there is no capacity at either time, the Will may be invalid.

There are two tests that may be applied to determine testamentary capacity—the common law test established by the case of Banks v Goodfellow and the statutory test introduced by the Mental Capacity Act 2005 (MCA 2005).

Restriction on deputies to make a Will on behalf of P and the Court of Protection’s juri

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