What is a Statutory Will?
A Will made by the Court of Protection on behalf of a person (“P”) who lacks the capacity to make a Will is called a Statutory Will. The Court derives its authority from the Mental Capacity Act 2005.
When should a Statutory Will be made?
The following are some circumstances giving rise to the making of a Statutory Will:
- the value of the estate has decreased (perhaps due to the payment of care fees, or an asset has had to be sold to cater for the payment of care fees)
- The value of the estate has increased, for example due to an award of compensation
- P may have recently married or remarried which could change the order of distribution of the estate
- the validity of an existing Will is being questioned
- the existing Will does not make adequate provisions for a particular person
Testamentary capacity refers to P’s ability to make a Will. A person’s right to make a Will (or not make a Will as the case may be) is considered to be a fundamental right. As such, any attempts to interfere with this right is taken seriously by the Court who will need to be satisfied that P lacks testamentary capacity.
Medical evidence is adduced to confirm that P lacks testamentary capacity and can be from P’s general practitioner or a psychiatrist. The test used to assess testamentary capacity is as follows:
- Does P understand the nature of making a Will and its effects e.g. that P will die and that the Will comes into operation after her death, the appointment of executors, outrights gifts, etc.
- Does P understand the extent of her estate?
- Does P have an appreciation of the possible claims that can be made against her, e.g. from beneficiaries that have been left out.
An application must be made to the Court of Protection. Permission is not required if the application is made by P, P's court appointed Deputy, or P’s attorney under a Lasting Power of Attorney. Any other category of applicants such as P’s relatives or friends would generally require the Court’s permission before making the application. It is also possible to make an urgent application.
Along with the relevant forms and medical evidence, the Court will require evidence from the person making the application which usually takes the form of a witness statement. The witness statement must provide various details including; the proposed draft Statutory Will, the reason for which the proposed Statutory Will is in P's best interests, a schedule of assets and liabilities, P's medical condition and future needs.
Once the application has been issued, the applicant will need to serve copies of the application onto the relevant Respondents. The Respondents are usually the beneficiaries under the current Will or proposed beneficiaries of the Statutory Will and can also include the Official Solicitor acting as the litigation friend of P. Depending on the nature of the matter, the Court may also set a timetable within which various documents have to be filed.
The role of the Official Solicitor
The Official Solicitor forms part of our judicial system and acts for children and individuals who have lost mental capacity. In Statutory Will applications, the Official Solicitor acts for P and represents P’s views in the court proceedings. This role is commonly called acting as someone’s “litigation friend.”
The Court's decision
The matter can be dealt without a court hearing if the parties are in agreement as to the form and contents of the proposed Statutory Will. In the event of a dispute or if the matter is complex, a court hearing will be held to decide the matter.
In making its decision, the Court must consider the following:
- P's past and present wishes and feelings including any previous Wills made by P when he had capacity
- the beliefs and values that would be likely to influence his decision if he had capacity, and
- other facts that P would likely consider if P were able to do so.
Costs of the application
The general rule is that the costs of the proceedings (including the different parties’ costs) are paid from P's estate.
What happens if P dies without making a Will?
If P dies without making a Will, P's estate would be distributed according to the intestacy rules. For further information, please refer to Gillhams' Intestacy Factsheet.
Written by our trainee solicitor Sarah Ahchoon