When the Court Writes the Will
What is a Statutory Will?
There is a common understanding in the UK that one can make a Will to protect their wealth and their family’s future. This is a self-serving process where the individual prepares their Will to protect their own best interests. However, did you know that a Will can also be prepared on behalf of an individual that lacks the testamentary capacity to make a Will themselves? This is what is known as a Statutory Will.
The Court of Protection has powers under the Mental Capacity Act 2005 to approve the making of a Statutory Will. Examples of where the Court of Protection will step in to authorise a Statutory Will are as follows:
- The individual has had a serious brain injury;
- The individual has dementia;
- The individual cannot understand what making a Will means;
- The individual cannot understand how much money or property they own.
This is not an exhaustive list. The idea of testamentary capacity is governed by the longstanding legal precedent set in Banks v Goodfellow. It is important to understand that this is a subjective test where each person’s specific circumstance is assessed.
The Court of Protection will only authorise a Statutory Will if it is in the ‘best interest’ of the protected party. When carrying out this exercise, the court will assess various factors to ascertain the individual’s circumstances. This includes but is not limited to assessing the individual’s past and present wishes/desires, the individual’s beliefs and values and consulting with family members, caregivers, deputies or attorneys. By adopting this holistic approach, the Court of Protection constructs a picture of what the individual would want if they had mental capacity.
The application process
The process of applying for a Statutory Will is one that involves careful preparation. Before the court can proceed with a proposed application, an evidential stage must be passed. This includes the court being satisfied that the individual lacks capacity. For the court to be satisfied of this, a medical professional will carry out a formal capacity assessment. A financial schedule will need to be prepared detailing what the individual has in their estate along with a comprehensive family tree listing the individual’s relatives. This is important as anyone who would be financially impacted under the new Will (or would have inherited under the existing intestacy rules) must be notified. Where the whereabouts of an individual is unknown, special ‘detectives’ can be employed to locate the individual. This can sometimes be uncomfortable as an individual who may be written out the new Will may wish to contest the proposed Statutory Will leading to a lengthier process.
It is common practice for a third party, usually the official solicitor, to be appointed on the protected party’s behalf. They will be expected to act in the protected party’s best interests throughout the process. Once the proposed Will has been drafted and the relevant Court of Protection forms prepared, it will be placed in front of the court for approval. As you will be aware from reading this, the making of a Statutory Will requires significant work from the offset. It is advisable that a specialist legal professional is consulted for this process.
If you are supporting someone who may need a Statutory Will, our specialist team can guide you through each stage of the Court of Protection process. We can help assess capacity, prepare the required documentation and ensure the proposed Will reflects the individual’s best interests. Contact us today to discuss your situation and receive tailored advice. Call 0330 822 3451 or request a callback.