Who has capacity to make a Will?
Anyone over the age of 18 can make a Will provided they have what is called ‘testamentary capacity’.
In broad terms, this means that the person making the Will must understand the nature of the document they are signing, what they own and roughly what it is worth, and the claims of those to be benefited by, or excluded from, the Will.
What is a Statutory Will?
If someone does not have the mental capacity to make a Will themselves, an application can be made to the Court of Protection for a Will to be made on their behalf. The Court of Protection manages the affairs of vulnerable people and those who no longer have the ability to manage their own financial affairs.
A Will made this way is called a Statutory Will.
Even if a Deputy is already in place, they have no authority to sign a Will on behalf of the person whose affairs they manage and so a Court application is still required.
Click here to read more about the Court of Protection and how it works
Who can apply for a Statutory Will?
· Someone who has been authorised the Court
· The person’s lawyer
· Someone who may reasonably be expected to benefit from a Will
· Someone that stands to benefit from the person’s existing Will
· The patient’s receiver in accordance with the 2007 Mental Health Act
· Someone who has applied to be the receiver prior to anyone else being appointed
When might a statutory Will be required?
Among the circumstances when the Court of protection often feel that statutory will is necessary are the following
- the vulnerable person does not have a will
- their estate is now worth less – i.e. there is less to distribute among the beneficiaries
- the estate is now worth more e.g. following a court order of accident compensation
- tax planning purposes
- the death of one or more of the beneficiaries
What do I need for a Statutory Will?
The application to execute a Statutory Will can be quite slow and involves lots of paperwork . As well as completing the Court’s standard application form, the Court requires the following information:
- A draft of the proposed new Will and copy of any existing Will
- Consents to act from the proposed executors of the new Will
- A family tree
- A schedule of the assets together with their current values
- A schedule of net yearly income and expenditure
- A statement of the needs of the individual, both current and future, such as care costs
- The resources of proposed beneficiaries, if felt to be relevant
- Details of any tax implications of the proposals
- A report on the medical condition and life expectancy of the individual
The Court may never meet the person on behalf of whom the Will is to be made, and so this information is required to give them as full as possible a picture of the person, their financial situation and their family.
Statutory wills and mental capacity
In addition, the Court of Protection will only permit a Statutory Will to be made if there is enough evidence to demonstrate that the person concerned has insufficient mental capacity.
Click here to find out more about Mental Capacity and Wills
What factors will the Court consider?
The fundamental point is that the will must be in the best interests of the person concerned. In making that decision, the Court of Protection will look in particular at both their current and past feelings and wishes. They will pay particular attention to any previously written statements made by the person in question (e.g. a previous will) made when that person did have capacity.
Do I have to go to Court?
Sometimes those making the application are asked to attend a Court of Protection hearing. These hearings are designed to be less formal than hearings in other Courts, and the Official Solicitor usually represents the person for whom the Will is made.
What happens then?
The Court aims to make the Will that the person would have made had they been acting reasonably, with competent legal advice, had they enjoyed a ‘brief lucid interval’. A Statutory Will can make any provision that could have been made by the person had they had Capacity and so it cannot, for example, dispose of property abroad.
If the Will is approved by the Court, an order authorising its signature, usually by the person who made the application to the Court, will be made. Their signature must be witnessed in the usual way, and the Will is then sent to the Court who apply their seal to it. It is then a valid Will.
But I don’t need a whole new Will…
If only minor changes are required to an existing Will, then an application can be made to execute a Statutory Codicil; the procedure is is the same.
Statutory wills – the need for the right legal advice
Make sure that you get specialist legal advice as early as possible if a Statutory Will is being planned; particularly when using a Statutory Will to update an existing one, as this can cause complex legal situations.
You also need to bear in mind the possibility of future inheritance claims on the estate by dependents.
Click here to read more about making or defending an inheritance claim.