Genealogy Blog:

Over recent months I have had an increasing number of instructions from solicitors to compile a family tree for an individual who has lost capacity, in relation to the preparation of a Statutory Will for that individual.

Statutory Wills are required when an individual has lost capacity and it is deemed necessary for the individual to make a Will. In these circumstances, an application must be made to the Court of Protection and, if authorised, the attorney or deputy can execute a Will on behalf of the donor.

For the application to be successful, however, the Court of Protection apply an objective test to see whether the Statutory Will is in the best interest of the donor. Several situations exist where the Court consider it necessary for making the application, for example:

• Whether the vulnerable person (the donor) has never made a Will before;
• Whether the donor’s estate has increased or decreased in value;
• Tax planning purposes.

The Court may request a copy of a family tree for the donor so the Judge can see if any of the close family members are being withheld from the Will or whether any claims against the donor’s estate could arise in the future. Unfortunately for the donor, they may not be able to inform the judge who their relatives are and so the provision of a family tree is a crucial stage of the application process.

The genealogist plays an important role in this process by researching the donor’s family background to identify and locate all relatives of the donor in order to prepare a full and thorough family tree as part of the application process to the Court.

It is often the case that conflicting or inaccurate information is believed to be true in the donor’s family background: one case has involved a lady who claimed on her marriage certificate that her father was in fact her maternal uncle; children believed to be those of the donor have transpired to be step-children of the donor. Another matter changed from the preparation of a family tree for Statutory Will purposes into an intestacy matter as the donor sadly passed away during the research process. It is therefore imperative that speed is of the essence when conducting genealogical research into such matters so that the application can be submitted as soon as practicable to protect the donor’s position.

If you handle Court of Protection work or are an attorney or deputy for a vulnerable person, are you confident that an appropriate Statutory Will is in place for that person? If you have any queries regarding the provision of a family tree to accompany an application to the Court of Protection, please contact me to discuss the matter further. Each case is treated with the utmost sensitivity and confidentiality and a free quote will be provided dependent upon the individual circumstances.