Probate Solicitors Limited - Wills & Codicils
What is a Statutory Will?
A Statutory Will is a Will made on behalf of a person who is adjudged incapable of doing so themselves on the instructions of the Court of Protection. It is only to be used where a person is not able to make their own Will. Although a Statutory Will is normally made where there is no Will in existence, it can also be made to replace an existing Will that is thought to no longer represent the wishes of the person. However, there would need to be strong evidence that the existing provisions are no longer the person's wishes because of intervening circumstances.
Why might a Statutory Will be made?
To make a valid Will the person making it must have what is known as "testamentary capacity". This means they must understand the nature of the document, be aware of the extent of their property and appreciate who they ought to be thinking about, and providing for, in their Will.
If someone lacks the testamentary capacity to make a regular Will it is possible for an interested party to apply to the court to make a "Statutory Will" for that person.
When making the application for a Statutory Will to the Court of Protection, all potentially interested parties must be informed. Any party who believes the Will to be unfair or unjust can lodge an objection. The Court will consider any objections and has the power to amend the proposed Will.
How complicated is it to apply?
An application for a Statutory Will is only undertaken as a last resort and permission is not granted lightly. The court is being asked to make a major decision on behalf of someone who, by definition, lacks capacity. There are also likely to be persons prejudiced by the Will who may oppose the application. The Official Solicitor is likely to be appointed to act as for the "testator" (the person who's Will it is). The Court of Protection Rules 2007 (CPR 2007) and Practice Directions impose a procedural formality that can lead to a simple adjustment to a person’s will becoming a major legal process.
There are also considerations of cost. The usual rule is that the estate will bear the costs of the parties (CPR 2007, rule 156). However, this cannot be taken for granted. The applicant must also consider whether the estate will bear the considerable costs that are likely. If the estate is small then, however desirable a Statutory Will might be, the question of whether it is essential needs to be considered carefully.
Who may apply?
The rules are complex and you should obtain specialist legal advice before considering any such application. As a guideline, the following classes of people may make normally an application:
- a person who has made an application for the appointment of a deputy for which permission has been granted but which has not yet been determined;
- a person who, under any known Will or intestacy of the person involved, may become entitled to any property or assets;
- a person who is an attorney appointed under an enduring power of attorney (EPA) which has been registered in accordance with the MCA 2005;
- a person who is an attorney of an LPA which has been registered in accordance with the MCA 2005; or
- a person for whom the person involved might be expected to provide if he had capacity to do so.
Otherwise permission would be necessary to even start the process. Permission would therefore be required if, for instance, a concerned relative or friend wished to make an application but had no financial interest in the outcome.
What are the benefits of a Statutory Will?
By making the Will the testator avoids the situation of intestacy when they die. It also allows the testator to revoke a previous Will if it was out of date but could not be changed because of their lack of capacity.
A Statutory Will cannot be challenged at a later date for lack of validity, however, a claim can still be made under the Inheritance (Provision for Family Dependants) Act 1975.
If you think you have a relative who might need a Statutory Will or you want to lodge an objection against one then please contact us on 01564 758055