HM Insights

Changing a Will for adults who have lost capacity to make decisions

What happens when an adult no longer has capacity to act or make decisions for themselves and they have a Will that does not reflect their current situation?

In general, an individual can sign a Will or make changes to an existing Will by signing a Codicil. If a person no longer has capacity, then usually the last Will or Codicil that they signed will determine the distribution of their estate.

However, since the introduction of the Adults with Incapacity (Scotland) Act 2000 applications have been made to the courts by interested parties seeking to change the terms of an existing Will on behalf of an adult who does not have capacity.

making-a-will-incapacity-intervention-order-power-of-attorney-scotland-law-lawyer-solicitor-court-guardianship.jpg

Adults with Incapacity

Where an adult does not have capacity and they do not have a Power of Attorney in place, an application can be submitted to the Sheriff Court by a person with a connection to the adult concerned, to be appointed as the adult's Guardian.

The powers contained in a Guardianship Order or a Power of Attorney are largely similar, allowing the appointed person to manage the adult’s financial and welfare affairs. A Guardianship Order will also include powers to sign deeds or documents, which is a very general power, but this does not stretch to include the preparation of a Will or Codicil on behalf of the adult.

The 2000 Act also provides for Intervention Orders. An Intervention Order is a court order allowing an interested party to take a one-off action or to make a decision on behalf of an incapabable adult, including authority to prepare a Will or Codicil on behalf of the adult. The application can be made by any interested person and when determining the basis of an order the court will apply the following principles:

  1. Minimum intervention;
  2. Least restrictive; and
  3. Past and present wishes and feelings of the adult.

Case law examples

In a 2005 case*, a Sheriff granted an application for an Intervention Order authorising the solicitor of an incapable adult to sign a Codicil to the adult’s Will.

In this case, the adult left her house to her son and the residue of her estate to the widow of her other son. The adult had stated that her surviving son should be her principal beneficiary. Due to the onset of Alzheimer’s disease the adult moved out of her home and this was unoccupied for some time. The adult had appointed her son as her Attorney, and he did have authority to sell the property. However, if he had sold the property then the proceeds would fall into the residue of the adult’s estate and would also benefit the adult’s daughter-in-law.

It was clear from the solicitor's file notes taken at the time of preparation of the Will that the adult had intended her surviving son to be her principal beneficiary. As the Sheriff was satisfied that the previous wishes of the adult would be met, he granted the necessary authority to allow a Codicil to be put in place alongside the adult's Will, altering the distribution of the residue of their estate.

In contrast, in a 2012 case** the Sheriff denied an application to execute a Codicil to revoke a specific bequest in an adult’s Will. In this case the adult had made substantial provision for her sister, who was also in care. The applicant argued that if the bequest was allowed then the funds would be used in an assessment of care costs and the legacy would be lost. As there was no written evidence to indicate that the adult would change her Will in these circumstances and on account of her close relationship with her sister, the Sheriff concluded that the adult would not chose to disinherit her sister, in any circumstances.

Comment

Both cases highlight that whilst an Intervention Order is available to make changes to an adult’s Will, the Sheriff will only consider granting such an order if it is clear that the adult’s wishes are being adhered to.

The current law combined with the cases outlined above and others highlight the importance of accurately recording your wishes and ensuring that these are kept as up to date as possible.

We're here to help

Should you wish to discuss the issues raised above, please do not hesitate to contact the Private Client team at Harper Macleod using the form below or call one of our offices on:

Edinburgh: 0131 247 2500                          Inverness & Highlands: 01463 795 035

Glasgow: 0141 227 9344                            Shetland01595 695 583 

Elgin: 01343 542623

We have solicitors and offices across the country in Edinburgh (next to Haymarket Station), Glasgow (next to Glasgow Central Station), Inverness, Thurso, Elgin and Shetland, ready to help in person or over the phone. 

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.

Useful Links

MAKING A WILL IN SCOTLAND

POWER OF ATTORNEY IN SCOTLAND


* T, Applicant, 2005 S.L.T. (Sh Ct) 97
** Application by the Guardian of P (AW310/12) 2012 G.W.D. 39-771