Understanding Statutory Wills

Will is a cornerstone of estate planning. It ensures your chosen executor carries out your wishes after you die. But what happens when someone lacks the mental capacity to create or change a Will? In these circumstances, someone can apply to make a Will (or statutory Will) on behalf of someone else.

Their Function

In England and Wales, the Court of Protection (CoP) authorises the execution of statutory Wills. Under the Mental Capacity Act 2005, the CoP makes decisions regarding an individual’s property and financial affairs when they can’t do so themselves.

The function of a statutory Will is the same as that of a ‘regular’ Will. As a legally binding document, it outlines how an individual distributes their assets after death. However, the critical difference lies in the creation process of a statutory Will. It bypasses an individual’s direct involvement due to their mental incapacity.

Applying for a Statutory Will

The CoP considers applications from various parties with a legitimate interest in an individual’s well-being. These include:

Family members, including spouses, civil partners, children, or other close relatives.
Appointees such as individuals with a Lasting Power of Attorney (LPA) for the person’s property and financial affairs.
Court-appointed deputies. When no LPA exists, the Court may appoint someone to manage the individual’s financial affairs.

When They Are Used

There are several situations where a statutory Will becomes necessary, including:

Without Existing Will – A statutory Will documents an individual’s wishes even if they lack capacity and do not have a current Will.

Outdated Will – An existing Will might become unsuitable due to changes in circumstances, such as births, deaths, marriages, or significant fluctuations in the estate’s value. A statutory Will can update estate distribution.

Beneficiary Predeceased – If a beneficiary named in an existing Will dies before the individual, a statutory Will can address this change and name a new beneficiary.

Tax Planning – In some cases, statutory Wills minimise inheritance tax.

The Process

The application for a statutory Will involves several steps:

Application Submission – The interested party completes an application to the CoP. This should include details of the proposed beneficiaries and reasons for a statutory Will. Supporting evidence regarding the individual’s mental incapacity is crucial.

Court Assessment – The CoP assesses the application, including medical reports from qualified professionals confirming the individual’s lack of mental capacity. The Court might also consider any previously written Wills or wishes expressed by the individual.

Public Notice – It may be necessary to issue a public notice, inviting objections from anyone with a potential claim on the estate.

Court Decision – If the CoP approves the application, the applicant can then make a statutory Will based on the information presented. In some cases, this may include the individual’s known wishes.

Will Signing—An authorised person, typically the court-appointed deputy or an individual authorised under existing Powers of Attorney, signs the statutory Will on the individual’s behalf in the presence of witnesses. The CoP seals and then finalises the document.

Critical Considerations for Statutory Wills

The application process for creating a statutory Will can be expensive, involving court fees and potentially legal representation. Also, the process can be lengthy and take several months, depending on the case’s complexity and potential objections.

Loss of mental capacity may be temporary or permanent and can arise from lifelong disability, life-altering accidents, or progressive illnesses such as dementia. Whatever the circumstances, the Court’s primary concern is acting in the individual’s best interests and involving them wherever possible.

In light of the Re P [2009] case (a significant precedent), the Court may consider whether it’s important for individuals to be perceived as doing the ‘right thing’. However, the ‘right thing’ for many is often contentious. Indeed, one of the most challenging aspects of creating a statutory Will is when there is a disagreement. Family conflicts are invariably emotional and legally complex, making the role of the Court of Protection even more crucial.

Our Advice

Statutory Wills are valuable documents for ensuring a clear plan for asset distribution when someone lacks the mental capacity to create a regular Will. While it’s often a complex and time-consuming process, it’s reassuring for many to put into effect what they believe their loved ones would have wanted.

We have many years of experience advising clients about a wide range of Wills, trusts and estate matters. Please contact us for further information. 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.