For most people, making a Will is a simple and effective way of ensuring that your estate is dealt with according to your wishes. However, what happens when an individual lacks the mental capacity to make a valid Will?
It can be very difficult to know what to do when a loved one loses some of their mental faculties, but helping them to make a Will is still possible. This article looks at one solution, that of a Statutory Will.
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What is a Statutory Will?
A Statutory Will is put in place by the Court of Protection, when a person’s mental abilities have become impaired to the point they are no longer capable of making a valid will themselves. Statutory Wills can be used to create a new Will, or adjust one that is out of date or where there has been a change in circumstances.
In more technical terms, when an individual lacks sufficient testamentary (mental) capacity, they are considered unable to make a valid Will. However, a new Will or codicil to an existing Will, can be executed by someone nominated by the Court of Protection. These Wills are called Statutory Wills and are made under the provisions of Section 18(1)(i) of the Mental Capacity Act 2005.
When is a Statutory Will required?
Applications for Statutory Wills can be made for numerous reasons, but common applications are made to:
Avoid an intestacy situation where there is no Will.
Adapt a Will where there has been a significant change in circumstances.
Avoid a situation where a gift in an existing Will fails due to the intended gift no longer being part of the estate, for example if a financial deputy must sell an intended gift to fund care for the protected person.
If there are doubts as to the validity of an existing Will.
Where there are tax advantages in having a new Will.
What is the Court of Protection?
The Court of Protection is a court that deals with decisions and actions taken under the Mental Capacity Act. When someone lacks mental capacity and cannot make decisions for themselves the Court of Protection has the power to make decisions on their behalf, or to decide if they have sufficient mental capacity to make decisions for themselves. As well as Statutory Wills, the Court of Protection deals with other things, such as the removal of attorneys under a Lasting Power of Attorney or the appointment and removal of Deputies to deal with an individual’s financial and health and welfare affairs.
What is Testamentary Capacity?
Testamentary capacity is the name given to the necessary mental capacity that is needed for an individual to make a valid Will, or change to their Will. Just because someone has dementia, for example, does not mean that they will not have testamentary capacity. An individual who understands what a Will is, the size and nature of their estate, and the extent of those who might have an expectation to inherit, will generally be considered to have capacity. If there are doubts about an individual’s testamentary capacity it is usual to obtain an independent medical report.
How do you apply for a Statutory Will?
Anybody can apply on behalf of the protected person but usually it will be their spouse or partner, family member, friend, deputy, or attorney. The application is quite complicated and time consuming and for that reason many people choose to engage specialist legal assistance.
If there is an urgent need for the Will to be changed, for example, the protected person is in poor health or close to death, an application can be made for an expedited hearing. It is common to give advance warning to anybody who has or is likely to have an interest in the proposed Statutory Will (respondent).
The process requires the completion of an application form, including:
Details of the protected persons financial circumstances.
A medical report dealing with their mental capacity, and health issues if an expedited hearing is sought.
A witness statement from the applicant in support of the proposed Statutory Will.
A draft Statutory Will (or codicil).
Consent to act from the proposed executors.
Details of the protected person’s family.
Once issued, the application and supporting documents will have to be served on the respondents, who, if they object, will need to file a witness statement with the Court of Protection to that effect. The court will then look to join the protected person to the proceedings by appointing the official solicitor to represent them and their interest.
A case management conference will be arranged for the court to give directions for the steps necessary to bring the application to a final hearing. The directions given will depend on the nature and extent of the objections to the proposed Statutory Will.
If agreed, the court will issue the Statutory Will at a final hearing along with directions as to its execution usually by the protected person’s deputy or attorney. It is important to note that until the Statutory Will is executed in accordance with these directions, it does not become valid.
How long does it take to obtain a Statutory Will?
This will depend on how busy the Court of Protection is, but a general guide would be in the region of four to six months.
How much does a Statutory Will cost?
The cost will depend on, amongst other things, the complexity, urgency, and the extent of resistance encountered. Once instructed, a good lawyer will be able to give you a better view of the likely costs.
On a successful application, the protected person’s estate will be required to pay the costs of the application. In general terms, for a straightforward case, fees are typically £3,000 to £5,000 excluding VAT. You should also expect a court fee (currently £365) and the cost of a medical report.
Do I need to use a solicitor or lawyer?
It is not always necessary to use professional legal help, however due to the nature and complexity of the process an experienced lawyer will help the process run as smoothly as possible, using their professional knowledge to take your individual circumstances into account and advise on the best course of action for all those involved.
How can Goughs help?
It can be extremely difficult when a loved one loses mental capacity, and you will likely be thinking about much more than the validity of their Will. Moreover, determining when a Statutory Will is necessary can be a complicated and sensitive process.
At Goughs, we have an experienced team of Will specialists, including a partner who acts as a professional Court of Protection deputy. Our team will help you consider all of the implications and sensitivities that surround the creation of Statutory Wills. We are also here to guide and advise you throughout the process, from completing the initial forms to seeking approval of the Will by the court of protection.
To get in touch for advice or information, please complete the form below or email firstname.lastname@example.org.