A Statutory Will is a Will made on behalf of someone, who has lost mental capacity, and is subsequently unable to make or change a Will themselves. The Statutory Will application must be made to and approved by the Court of Protection.
A Statutory Will application can be made in the following instances:
- Where a person does not understand what making or changing a Will means;
- In the instance where someone does not know how much money or what property they own;
- When someone does not understand how creating or changing a Will might affect the people they know (such as those mentioned or not mentioned in the Will).
Statutory Will application process
An application to make a Statutory Will on behalf of someone generally requires permission from the Court of Protection. However, the following people do not require permission:
- A Deputy or Attorney listed in a Lasting Power of Attorney
- A Deputy appointed by the Court
- A Public Guardian
- Any person listed as a Beneficiary in a previous Will
- Any person who could be entitled to benefit from the estate under the rules of intestacy, such as a spouse
The language used when making the application should reflect the language and phrases which appear in the Mental Capacity Act 2005. The person, or solicitor making the application on their behalf, thus states in the application that they reasonably believe that the application is in the impaired person’s best interests and gives the reasons which have led to this conclusion.
The application must specify the financial circumstances of the person, who has lost mental capacity, plus the arrangements for their care. Also, the application should detail the person’s family members.
A report by a qualified professional confirming the person lacks capacity would also be required.
Here is an example of when a Statutory Will may be required when a Will already exists:
Before he was involved in a car accident, which robbed him of his ability to look after himself, John Smith had made a Will.
In this Will, he left his estate to his son, also named John Smith but, who for his own purposes, preferred everyone to call him Jack.
After his accident, Jack, who prior to John’s accident, had grown apart from his father, did very little to look after his father and left this to John’s good friend and neighbour, Joan.
Joan has been John’s neighbour and friend for more than 40 years and had witnessed father and son’s relationship deteriorate.
Before his accident, John had told Joan on many occasions he had made a mistake making a Will which left everything to Jack and was going to make a new Will leaving his estate to his disabled brother who he had looked after for many years.
John was crossing the road in front of his solicitors, with whom he had a 9.30am appointment to write a new Will, when he was knocked down.
Joan calls the solicitor with whom John was due to meet and relates this unhappy tale.
The solicitor thinks a Statutory Will application might be in order and after meeting with Joan and all the other interested parties, the solicitor drafts a replacement Will and applies to the Official Solicitor to endorse the new Will.
The cost of completing all the work required in making a Statutory Will is prohibitively high. All the people who might benefit from John’s estate will have to be contacted and the Official Solicitor will want to see a complete family tree included in the submission.
In this example, it is worth noting that Jack might dispute the need for a Statutory Will to be drafted at all. The solicitor who makes the application should do all they can to arrive at a consensus between the parties prior to making the submission, especially as both the Official Solicitor’s and private client solicitor’s costs will be paid by John.
It must be remembered there remains many other considerations to be taken into account before making an application for a Statutory Will and the example provided above is for illustrative purposes only. Another scenario where a Statutory Will application might be made is when there is a suspicion a Will has been drawn up after the testator had lost capacity.
There are a number lessons in the foregoing – one being a testator should regularly re-visit his or her Will and make changes after significant life events.
If you would like any advice on the subjects discussed in this article, please get in touch with Craig or another member of the team in Derby, Leicester and Nottingham on 0800 024 1976 or via our online form.