Applying for a statutory will

What is a statutory will?

In order to make a valid will, a person must have mental capacity. But what if someone loses capacity? In this situation it may be possible for another person to make a will on that person’s behalf. This is known as a statutory will.

How is a statutory will made?

In order to make a statutory will an application must be made to the Court of Protection.

Some applications are granted without the need for a court hearing.

The court will appoint the Official Solicitor to represent the interests of the person lacking capacity.

Applications for a statutory will

Applications for a statutory are very complex and should be supported by evidence in the form of a witness statement with a statement of truth. The statement must be accompanied by a draft will.

A family tree should be exhibited, along with the most up to date will or codicil.

Details of the person’s life, character, beliefs, relationships, wishes and intents should be provided together with relevant documents or correspondence.

An up to date schedule of the person’s assets should be supplied, together with details of their current and future needs.

Inheritance tax considerations need to be addressed in the application.

Full particulars of the person’s medical condition and mental capacity should be provided, together with an estimate of life expectancy and any medical evidence relied upon.

Where urgent action is required, applications can be made for an interim or holding will. This can be dealt with on an expedited basis. This would be particularly relevant where there is a risk of the person passing away before the main hearing. It must be remembered that the Court of Protection does not have jurisdiction once a person has died. If the person dies before the application can be heard then any pending statutory will application will be dismissed.

When will an application be approved?

The Court of Protection will look at the benefits of a statutory will and consider what would happen if it was not approved. This will involve looking at any previously executed will or what would occur if the intestacy rules were to apply.

Under the Mental Capacity Act 2005 (MCA) the court must consider what is in the best interests of the person lacking capacity. It will consider what they would have wanted.

In deciding what is in the person’s “best interests” the Act specifies that this should include consideration of:-

  • The person’s past and present wishes – including any written statement made when they had capacity;
  • The beliefs and values that would be likely to influence the person’s decision if he had capacity; and
  • Other factors the person would be likely to consider if he were able to do so.

The views of family or people caring for the person are relevant, along with the opinions of any deputy or attorney.

Who can apply for a statutory will?

The categories of people who can apply for a statutory will are defined by Section 50 of the Mental Capacity Act. They are as follows:-

  1. The incapacitated person themselves;
  2. A deputy;
  3. Official Solicitor;
  4. Public guardian;
  5. Any person who has applied to be appointed as a deputy;
  6. Any beneficiary under the last will or intestacy;
  7. An attorney;
  8. Anyone for whom the incapacitated person might be expected to provide; and
  9. Any other person who has the permission of the court.

How we can help

It will be clear from this overview that the law governing statutory wills is highly complex.

Our specialist solicitors can make an application to the Court of Protection for a statutory will to be made. We can also oppose an application where it is felt that the proposed statutory will is not in the person’s best interests.

We offer FREE initial advice on all statutory wills issues. Call us on 0808 139 1606 or email us at [email protected]

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