A statutory will is a legal document created for someone who cannot make or update a will because they lack the mental capacity to do so. Unlike a standard will, a statutory will requires an application to the Court of Protection and must be approved by the court before it can take effect. This allows arrangements to be made for a person’s estate where their existing will no longer reflects their circumstances, or where they have never made a will.
A statutory will can be considered in a range of situations. It may be appropriate where changes are needed to protect the person’s interests and ensure their estate is managed appropriately. We outline the purpose of a statutory will, when you might need one, and how the application process works.
What is the Goal of a Statutory Will?
A statutory will allows you to make arrangements for the estate of someone who lacks the mental capacity to make or update a will. It can be used where there is no existing will, where an existing will no longer reflects the person’s circumstances, or where changes are needed to ensure their estate is managed appropriately.
The purpose is to ensure their wishes, interests, and personal circumstances are properly considered when decisions are made about their estate. A statutory will may therefore provide an important form of protection where ordinary will-making is not possible. It can address changes in family relationships, financial circumstances, or beneficiaries, helping ensure the person’s estate is dealt with appropriately both during their lifetime and after their death.
When Might a Statutory Will Be Needed?
There are various circumstances where a statutory will may be considered appropriate for someone who lacks mental capacity. The need for an application depends on the individual’s circumstances and whether their existing arrangements still reflect their wishes and best interests. Common situations include:
- The Person has Never Made a Will: If someone lacks mental capacity and has never made a will, a statutory will may be needed to establish how their estate should be dealt with after their death. Without a valid will, their estate would generally pass according to the rules of intestacy. A statutory will can allow appropriate arrangements to be considered based on the person’s circumstances, wishes, and best interests.
- Their Existing Will is Outdated: An existing will may no longer accurately reflect someone’s circumstances if it was created several years ago. Changes to family relationships, beneficiaries, assets, or other personal circumstances may mean the provisions are no longer appropriate. If the person lacks capacity to update their will, an application for a statutory will may allow changes to be considered and formally approved.
- A Beneficiary has Died: If a beneficiary named in an existing will has died, the distribution of the estate may no longer reflect the person’s current circumstances or intentions. Depending on the will’s terms, this can create uncertainty about how assets should ultimately be distributed. If the person lacks capacity to make changes themselves, a statutory will may allow the Court of Protection to consider revised arrangements.
Who Can Apply for a Statutory Will?
A family member or professional cannot simply create a statutory will on behalf of someone who lacks mental capacity. You must generally apply to the Court of Protection, which has authority to make decisions about the property and financial affairs of people who lack capacity. A deputy appointed by the court may make an application, while an attorney acting under a valid lasting power of attorney may also be able to apply in appropriate circumstances.
Other people may also be able to apply if they have a sufficient interest in the person’s affairs. The court will consider the individual circumstances before deciding whether to authorise a statutory will. As the application process involves detailed legal requirements, obtaining professional advice can help ensure the application is prepared correctly and addresses the relevant considerations.
How Does the Statutory Will Application Process Work?
Applying for a statutory will involves several stages, and the Court of Protection must consider whether the proposed arrangements are appropriate. The process is designed to protect the interests of the person who lacks capacity and ensure any proposed will reflects their circumstances as far as possible. Professional legal support can help deputies, attorneys, and other applicants understand the requirements and prepare the necessary documentation.
Assessing the Person’s Circumstances
The first stage involves carefully considering the circumstances of the person who lacks mental capacity. This includes reviewing any existing will, their assets and financial position, family relationships, beneficiaries, and any known wishes or feelings. It is also important to consider why a statutory will is needed and what changes are being proposed. This information helps establish whether an application is appropriate.
Preparing the Application
Once the relevant circumstances have been established, the necessary application to the Court of Protection can be prepared. This involves providing information about the person, their estate, any existing will (if applicable), and the proposed statutory will. Supporting evidence may also be required to explain why the proposed arrangements are considered appropriate. A complete, accurate application can help avoid unnecessary delays.
Court of Protection Approval
The application is then considered by the Court of Protection, which will determine whether the proposed statutory will is in the person’s best interests. The court may consider their past and present wishes and feelings, beliefs and values, family circumstances, and other relevant factors. If approved, the statutory will can then be executed in accordance with the court’s directions and take effect as authorised.
Statutory Will Assistance at Gillhams Solicitors
At Gillhams Solicitors, we provide professional assistance with statutory wills, advising deputies and attorneys on the application process and helping them understand the requirements involved. We can help prepare and submit applications, whether a statutory will is required because an individual has never made a will or an existing will needs to be changed.
Our experienced solicitors can also assist with both straightforward and more complex statutory will matters, providing tailored advice based on the individual’s circumstances and interests. For legal advice on drafting a will and related matters, complete our online contact form. Alternatively, email solicitors@gillhams.com or call +44 (0)20 8965 4266.
