If a person is deemed to lack capacity to make a Will and their affairs necessitate some planning or allocation in the event of their death, steps can be taken for a Will to be made on their behalf. Such a Will is known as a Statutory Will.
What is a Statutory Will?
Statutory Wills are made by the Court of Protection, who have authority to make decisions on behalf of individuals who lack capacity. If executed properly, Statutory Wills have the same effect as if the individual had made a Will before they lost capacity. They are a legal document which will take effect on the individual’s death. A Statutory Will, will only ever be made if the Court considers it to be in the individual’s best interests for one to be made.
When is a Statutory Will needed?
Statutory Wills can be considered in various circumstances. They are usually applied for when the Will that has been made by an individual who lacks capacity is no longer fit for purpose. This could be because the beneficiaries named have died or because the provisions of the Will are no longer appropriate. Statutory Wills can also be made for an individual who has never made or contemplated making a Will, for example a young adult who has suffered a brain injury.
Mental Capacity Act (2005) S16(8)
There is not an exhaustive list as to when a Statutory Will will be required but the Court will need to be satisfied that there are suitable grounds for one to be considered. The Court will not welcome misjudged applications where it is plainly clear that a Statutory Will is not in the person’s best interests and is motivated by a beneficiary’s personal gain.
There are restrictions as to who can apply for a Statutory Will on behalf of an individual who lacks capacity. It is generally accepted that applications can be made by the individual who lacks capacity, an Attorney appointed by the person who lacks capacity, a Court appointed Deputy or a beneficiary under the individual’s existing Will.
Statutory Will application process:
It is always advisable that you seek legal assistance when contemplating a Statutory Will application.
Once a decision has been made to purse an application, a formal application needs to be made to the Court of Protection. This should include details of any existing Will and the proposed Statutory Will. A Court fee will also be payable. The Court has produced a Practice Direction which outlines what information is required in an application. The application will need to be served on all of those who have an interest in the individual’s existing Will and those who are proposed to benefit under the new Will.
As the application progresses, invariably the Official Solicitor will be appointed to act for the person who lacks capacity. Initial Directions may be given by the Court. Parties are encouraged where possible to come to a mutual agreement about the contents of any Statutory Will. If agreement cannot be reached, a Court Hearing is likely to take place, at which point the Court will determine whether a Statutory Will is in the individual’s best interests and if so, what provisions it should include.
Wolferstans Court of Protection team are experienced in Court of Protection matters and can assist you in making a Statutory Will application. Please contact for further information,