Making a Will When a Person Lacks Capacity
6 Min Read
When making a Will in normal circumstances it is a legal requirement that the person making the Will (“the testator”) has sufficient mental capacity to do so. Generally what this means is that the testator understands the nature and effect of making a Will, the extent of their property, and the claims of those who might reasonably expect to inherit their estate.
What happens if the testator lacks mental capacity in Guernsey?
Sadly many people leave it too late before considering making a Will. The consequences of dying without leaving a Will can be severe. A common misconception which still prevails is that a “common law spouse” has automatic inheritance rights. On the contrary, longstanding unmarried partners or valued friends stand to inherit nothing. In the absence of a Will the law dictates who will inherit your estate, and this may not coincide with your wishes.
What is a statutory Will?
There is a little-known solution which may be available in some cases where a person lacks the capacity to make a Will: making a “statutory Will”. This is a legal mechanism that allows a Will to be made on behalf of a person who lacks mental capacity. A statutory Will has to be approved by the Royal Court of Guernsey, and once made it has the same legal effect as a Will made by a person while they had capacity.
Statutory Wills in Guernsey can currently be made under older mental health legislation, pursuant to the provisions of the Mental Health (Bailiwick of Guernsey) Law 2010. This covers cases where a person is diagnosed with a mental disorder. This is defined as “any disorder or disability of the mind”. This definition is more limited in scope than perhaps one might think.
Mental disorder does not always mean incapacity
Someone with a mental disorder may lack capacity, but this is not always the case. A person diagnosed with schizophrenia for example may nevertheless be capable of managing their own finances.
Conversely a person may lack the capacity to make a Will for reasons not linked to a mental disorder. They may have a temporary inability to engage in decision- making, say if in a coma or if intoxicated or under the influence of drugs or medication. They may be suffering from delirium due to an infection or dehydration, or they may be in severe pain or shock. Not all learning disabilities are mental disorders – a person may lack capacity to make financial decisions but still have capacity for everyday choices.
Medical assessments may be necessary
As one might expect, a medical assessment would have to be carried out of the person concerned (“the patient”). An application would need to be made to the Royal Court of Guernsey. Such an application may be made by a relative, or a Law Officer, or any other person whom the court thinks fit (such as a guardian).
The application would contain details of the patient’s assets and property and a draft of the proposed statutory Will. The Court would review the application and supporting evidence and would need to be satisfied that the patient is incapable by reason of mental disorder of managing and administering their property and affairs. If so satisfied, one of the powers at the Court’s disposal is to order the execution of a Will if it has reason to believe the person is incapable of making a valid Will themselves.
The Court would make an order authorising a specific person to sign the Will, drawn up with the name of the patient, and with his own name, in the presence of two or more witnesses present at the same time. The witnesses would attest and sign the Will in the presence of the authorised person.
Capacity (Bailiwick of Guernsey) Law 2020
The power to authorise a statutory Will is also contained in the provisions of the more recent Capacity (Bailiwick of Guernsey) Law 2020. Whilst that Law has introduced the long-awaited Lasting Powers of Attorney the provisions concerning statutory Wills have yet to be implemented. The aim of the provisions is to extend protection to those vulnerable people who do not fall within the remit of the Mental Health Law.
Under the Capacity Law the Court would again need to be satisfied that a person lacked the mental capacity to make a Will, however here capacity is a functional assessment, not a diagnostic label, as no-one should be labelled incapable or incapacitated as a result of a particular medical condition or diagnosis, whether permanent or temporary.
A simple two stage test would be applied:
The diagnostic stage – does the person have an impairment or a disturbance in the functioning of the mind (whether temporary or permanent, and regardless of cause?)
The functional stage – is there evidence that the person lacks capacity to make the particular decision at the time the decision needs to be made?
The most common medical reasons where a person will have an impairment or disturbance in the functioning of the mind include dementia, coma, stroke and severe learning disabilities.
A person would be considered incapable of making a particular decision if they are unable to understand the information relevant to the decision, retain that information for an appropriate period, use or weigh that information in the decision-making process, or communicate their decision by any means.
The guiding principle under the Capacity Law is that any decision maker should establish what is in the patient’s best interests
In an ideal world everyone would have a Will in place, however sometimes this does not happen. Making an application to the Royal Court for a statutory Will can be a complex legal process, so it is strongly advised to engage a Guernsey-qualified Advocate, who can help prepare the application, gather supporting evidence and represent the applicant in Court.
Do you require a new or updated Will?
If you need a new Will or an update to your Will, our team can help. Visit Wills & Probate to learn more or Contact Us to arrange a consultation.