Statutory Wills

What is a Statutory Will?

A statutory Will in the UK is a Will that is authorised by the Court of Protection on behalf of someone who lacks the mental capacity to make or change their own Will. Without a valid Will, their estate would be distributed according to the rules of intestacy, which may not reflect their wishes or best interests.

You need to be over 18 and have testamentary capacity to make a Will.  The test for testamentary capacity is laid down in the case of Banks-v-Goodfellow 1870, it contains 4 limbs to the test which require that the person making the Will must:

1. Be able to understand the nature of making the Will and its effect
2. Be able to understand the extent of the property of which they are disposing
3. Be able to comprehend and appreciate the claims to which they ought to give effect
4. Have no disorder of the mind that prevents their sense of rights over their natural faculties in disposing of their property by Will

If any one those limbs is not met then the person will not have testamentary capacity.  It is important to note that the test is different for testamentary capacity than it is under the Mental Capacity Act although the requirements of the Mental Capacity Act do offer useful cross checks when considering capacity.

It is not always easy to identify whether someone has testamentary capacity and an independent professional capacity assessment may need to be required specifically to ascertain this.

If it is ascertained that a person does not have testamentary capacity then an attorney or deputy does not have authority to make or change that person’s Will.  However, an application can be made to the court for a judge to authorise the signing of a Will in the best interests of the person who lacks capacity.

Why should I make an application for a Statutory Will?

There are lots of circumstances when a Statutory Will is appropriate for example (but not exhaustively):

• There has been a change in relationship and the existing Will or Intestacy Rules no longer meet the wishes of the testator.  This might be as a result of a broken down relationship; a beneficiary has died or the beneficiary’s circumstances have changed (divorce, bankruptcy, increased care needs or change in financial circumstances) or the beneficiary has intentionally or unintentionally already benefitted in the lifetime of the testator.

• Specific provision needs to be made for a particular beneficiary such as ensuring the beneficiary has the use of accommodation; to compensate a beneficiary for the care that they have provided or a change in a beneficiary’s circumstances requiring them to need more provision
• Inheritance Tax planning – it may be that an existing Will or the Intestacy Rules do not apply any Inheritance Tax planning and a Statutory Will could therefore reduce the tax burden. This may include leaving gifts to charity or setting up a trust or bequeathing assets to take advantage of available reliefs
• The family do not get on and it is in the best interests of the testator to consider how to make appropriate provision for the beneficiaries and who is to administer the estate in the lifetime of the testator rather than leaving this until after death where costs and tensions can rise dramatically
• There is no Will and the Intestacy Rules are inefficient and do not reflect the testator’s wishes and circumstancesg. cohabitating with a partner that would not benefit under the Intestacy Rules; benefitting a child of the family that is not a biological or adopted child; there are no family at all and charitable provision would be in the testator’s best interests.

What is the procedure for making a Statutory Will application?

An application must be made to the Court of Protection on official forms following specific procedures and supporting evidence.  In each case a capacity assessment must be provided to the court to make the declaration of incapacity.  The application must be supported by the family tree; a statement of assets and liabilities; statement of income and expenditure; a before and after schedule and a draft Will.

The applicant should make a detailed witness statement of the circumstances and the reasons why the proposed draft Will is thought to be in the best interests of the Protected Party (“P”).

All parties affected by the changes should be notified, and they will have the opportunity to be joined in the proceedings.

In most cases, the Official Solicitor is invited to act as Litigation Friend for P

How are the costs paid?

Generally, the costs of a Statutory Will application for all parties are paid from P’s assets.  This is contained in Practice Direction 19B.  However, the judge has discretion to depart from this general rule, and it is important that all parties act proportionately and in the best interests of P.

Statutory Will applications can be extremely costly and timely, many take years to conclude.

In order for a Statutory Will application to be considered as reasonable and proportionate, the estate needs to be sufficient enough to warrant these costs.

How do I know the terms of the Will is in the person’s best interests?

Best interest decisions are not straightforward, but you must consider what the person would have done if they were able to make the Will themselves; their beliefs and personal values; how they have acted and made decisions for themselves in the past.  You will need to give clear reasons as to why you should depart from any former wishes

How can we help?

If your loved one’s assets are complex, they have not made a Will, or their current Will is no longer appropriate and you believe that something should be put in place in order to ensure that their finances and affairs are in order then do not hesitate to contact Wilson Browne Solicitors, one of our Court of Protection specialists are here to help. We can also assist long term in managing their property and affairs as deputies and attorneys.

If you are unsure whether a Statutory Will may be appropriate, we can offer a fixed-fee appointment to advise you.

For further advice get in touch with the experts in our offices in Northampton, Kettering, Corby, Higham Ferrers, Wellingborough and Leicester.