Statutory Wills – what are they for?

Statutory Wills offer robust protection for vulnerable people, protecting them from potential contentious claims after they die.

When someone who has not made a Will loses mental capacity, it is possible to apply to the Court to make a Statutory Will. Establishing what will happen to their home and valuables, including money, when they haven’t been able to make a will, is important.

The Mental Capacity Act 2005 (MCA) makes it possible for the Court of Protection to make a Statutory Will on behalf of any individual who is incapable of making one themselves.

This can be a complex (and lengthy) process, so we thought it would be helpful to provide answers to the most commonly asked questions and to understand what’s involved.

So, before we get on to Statutory Wills, what exactly is the Court of Protection?

The Court of Protection takes responsibility for making decisions on welfare and financial issues for people who lack mental capacity, at the time they need to be made.

They will decide whether the person does not have the capacity to make decisions for themselves and they will determine what is in that person’s best interests.

What power does the Court of Protection have?

In the landmark legal case Re M (2011) the Court of Protection stipulated that it could not state how valid a current Will is. However, it can authorise a new Will to be made and executed under the ‘best interests principle’ laid out in the MCA 2005. This means that any action taken, or decision made for a vulnerable person, must be in the person’s best interests.

Once a Statutory Will has been executed, it will be as if the person had executed the Will themselves, under ‘normal’ circumstances. It will, as with any legitimate Will be subject to the terms of the Wills Act 1837.

Why would I make an application?

You can make an application on the behalf of a child or an adult (who lacks capacity) for a range of different reasons. Commonly, this is through physical or mental illness, brain damage or because of a learning disability.

A Statutory Will application to the Court of Protection is useful in cases where there is the potential for a contentious claim to be brought post-death. In this case, a Statutory Will provides protection to the vulnerable person.

So, what are the most common reasons for making a Statutory Will?

The person has not made a Will before;
For Estate Planning/IHT purposes;
Where their estate has dramatically increased (or reduced) in value;
Where, as the incapacitated person, they have received substantial damages from a Personal Injury award;
If a beneficiary or beneficiaries under an existing Will have passed away or have received substantial gifts already, the Will may need to be altered;
To avoid a Probate dispute if it likely to occur post-death.

What should I include in an application?

The main question you need to ask is ‘does it serve their best interests’? When you make an application, you must provide evidence to the Court of Protection that it is in the vulnerable person’s ‘best interests’ to execute a Statutory Will.

There are three things you need to consider ‘best interests’:

If the person can express any wishes or feelings, then they should be considered.
Any present or past Wills.
The general beliefs and values of the person in question.

Who pays for this application process?

Usually the costs are taken from the vulnerable person’s own assets.

So, I’ve got a Statutory Will in place, how can I avoid claims after death?

If a Statutory Will application has been successful, a claim on the estate after death would be particularly frustrating.

Checklist

Is a Statutory Will application the best option? Could anything else be done instead of a Statutory Will application?
Where a Statutory Will is made, make sure:
1. A Medical Report is obtained;
2. All parties who should be involved have been notified or best efforts have been made to contact missing beneficiaries;
3. Copies of any previous Wills are included;
4. If the vulnerable person is near death, an urgent application is made;
5. Make sure the person is resident within England and Wales;
6. The Statutory Will is executed correctly.

Our Advice?

Unfortunately, relatives and loved ones don’t always agree about what’s in a Will – Statutory or otherwise. So, following the correct procedures and making a successful Court of Protection application is very important. As is often said, plan for the worst and hope for the best.

If you would like further information on the above and would like to discuss further, please don’t hesitate to contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

Statutory Wills – what are they for?

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