Chapter 5

Wills and Bequests

5.1 What is the effect of the Curatory upon the Ward's Will ?

On the Ward's death the estate will be handed over to his or her executors to distribute in accordance with the terms of the Will. The existence of the Curatory of itself does not affect the Will but of course any changes to the Ward's estate which the Curator is obliged to make may do so; for example, specific items bequeathed in terms of the Will might have to be sold to provide funds for the Ward's maintenance and it will be impossible in these circumstances to give effect to the bequest. So far as possible the Curator will do his best to avoid frustrating the Ward's expressed wishes if the contents of the Will are made known to him.

5.2 What happens to the Ward's estate if he or she has not made a Will ?

On the Ward's death an executor will be appointed by the Court and will distribute the estate accordingly to the laws of intestacy.

5.3 Can the Ward make a Will

Any Will made by a Ward, or any amendment to an existing one, would obviously be open to challenge by any interested person who is disadvantaged by it and the existence of a Curatory when a Will was made or altered might pre-suppose that such a Will would be found invalid, although this is not necessarily the case. To avoid unnecessary expense and later difficulty, it is essential to consult the Curator and probably to obtain medical and legal advice as to the Ward's capacity if the Ward wishes to make or alter a Will. Under no circumstances can a Curator or any solicitor accept instructions from someone other that the Ward to make or alter a Will for the Ward. (It should be noted that the provisions of the Mental Health Act 1983. S96 concerning the making of statutory Wills on behalf of mentally incapacitated persons in England/Wales do not apply to Scotland).