What is a statutory will and when are they necessary?

If someone lacks the mental capacity to make their own financial or welfare decisions, it is likely they lack the ability to make a will. This is where a statutory may be necessary.

When an individual is unable to make informed decisions for themselves, a Lasting Power of Attorney can be appointed. Attorneys can help a vulnerable individual to make decisions relating to their financial and welfare well-being.

However, there are some decisions, such as making a will, that can only be decided by the courts. A will made on behalf of someone via the Court of Protection is called a “statutory will”. In this guide, our experts will explain what a statutory will is, when it is necessary, and how to apply for one on someone else’s behalf.

 

What is a statutory will?

The Court of Protection is a specialist court that helps those who do not have the capacity to manage their own affairs. It has the power to make decisions for people regarding their health, welfare, finance, and property. The court will consider a multitude of factors and will always have the individual who lacks capacity in their best interests.

A statutory will is made by the Court of Protection on behalf of someone who is unable to do so due to a lack of mental capacity.

A statutory will has the same effect for vulnerable people as a standard will does for those who do not lack capacity.

 

What is testamentary capacity?

In order to legally create a will, an individual needs testamentary capacity.

The test for capacity to execute a valid will is based on case law. The individual must:

  • Understand the nature of making a will and its effects
  • Understand the extent of the property which they are disposing of
  • Be able to understand and appreciate the claims to which they ought to give effect
  • Have no disorder of the mind that may pervert their sense of right or prevent the exercise of their natural faculties in disposing of the property by will

If an individual did not have testamentary capacity when they wrote their will, the will is invalid.

 

When is a statutory will necessary?

If an individual who lacks testamentary capacity requires a new will or a change to an existing will, an application to the Court of Protection for a statutory will will be necessary. There might be a few scenarios when this can happen, such as:

  • The vulnerable person hadn’t made a will before they lacked capacity
  • A change in the will is needed
  • The beneficiaries in the will have died and there are no arrangements for replacements
  • The vulnerable person has high value assets
  • Tax planning reasons
  • A change in value of the assets

Determining when a statutory will is necessary can be a complicated and sensitive process. This is why it makes sense to seek expert legal advice before you apply to the court.

 

Why can’t I make a normal will?

A standard will made by someone who lacks capacity can be challenged by others on the grounds of lacking testamentary capacity. Scenarios like this can occur when family or friends believe that the vulnerable person was coerced into signing something in order for particular beneficiaries to get financial gain.

Testamentary capacity is usually presumed by the courts unless evidence is provided to put it in doubt. The burden of proof then falls onto the individual stating that the vulnerable person did have capacity when the will was written.

Providing evidence for this type of case, for either side, can be complex and often requires in-depth medical reports.

 

How do I apply for a statutory will?

Applying to the Court of Protection for a statutory will on someone else’s behalf has a few steps. There are a number of forms to fill out including:

  • An application form – where you will explain to the courts what you are asking to do and your reasons for doing so
  • A witness statement – where you will provide evidence supporting the application form
  • An information form – including a medical report and a summary of assets
  • An assessment of capacity form, completed by a medical practitioner – providing evidence that the person in question lacks mental capacity

After you have completed all of the relevant Government forms, you will need to provide supporting information. This includes:

  • A copy of the individual’s up-to-date will (not needed if there is no existing will)
  • A copy of the new proposed will or codicil
  • A copy of any deputyship order
  • Copies of any registered Lasting Power of Attorneys
  • Details of the person’s assets, income, and spending
  • Details of any executors
  • The person’s family tree, including names and dates of birth
  • An explanation as to why the applicant considers a statutory will to be in the best interests of the vulnerable person

Once you have sent these documents, you will receive a confirmation letter from the Court of Protection to tell you all of the documents have been received. You will also receive a “Directions Order” which will detail your next steps. 

 

What factors will the Court of Protection consider?

The Court of Protection is required to apply an objective test to assess whether any proposed statutory will is in the vulnerable person’s best interests. The Court will also try, where possible, to encourage the vulnerable person to participate in the process.

The Court of Protection will consider:

  • The vulnerable person’s wishes, both past and present – any written statements made by the person when they had capacity may also be relied upon
  • The vulnerable person’s beliefs and values that would likely influence their decision if they had capacity
  • The views of the carer of the vulnerable person
  • The views of the attorney chosen by the vulnerable person
  • The views of the deputy appointed by the Court of Protection

At all times, the Court of Protection will have the vulnerable person’s best interest at heart, and will likely also take into account how the vulnerable person will be remembered after their death.

It is also worth bearing in mind that the cost of making a statutory will can be expensive and it should only be undertaken where necessary.

 

How can Percy Hughes & Roberts help?

If you are concerned a loved one lacks the mental capacity to manage their own affairs and want to know more about the processes involved in taking legal responsibility for them, our Court of Protection solicitors can help you. If you believe a loved one needs a statutory will, our solicitors can guide you through your options and next steps.

At Percy Hughes & Roberts, we can not only advise you on the necessary steps required to take responsibility for someone's affairs, but also on how to create an up-to-date will for them so that all of their affairs are in order should they pass away.

If you need assistance with the appointment of a deputy, updating a will, creating a lasting power of attorney, or simply want general advice, our Wirral wills solicitors have a wealth of experience.

If you would like to contact one of our expert solicitors, you can do so by calling 0800 781 3894 or by completing the contact form on this site.