Lifetime Planning and Wills specialist, Sarah Loveless, explains what is meant by a Statutory Will, and when one may be required on behalf of a loved one. Our team are available on 01225 755656, or by email. Alternatively, you can complete the Contact Form at the foot of this page.
If a person needs a Will or changes are required to their existing Will, but they do not have the necessary mental capacity – referred to in this situation as testamentary capacity – it is possible to make an application to the Court of Protection for authority for a Statutory Will to be made on their behalf.
What is testamentary capacity?
Testamentary capacity is a legal term describing a person’s legal and mental ability to make a valid Will. If the person did not have testamentary capacity when they made their Will, their Will is invalid.
It is important to understand that if somebody is suffering from dementia, it does not automatically mean that they cannot make decisions about what should happen to their estate when they die. There are different types and degrees of dementia, and a sufferer may still have testamentary capacity. Crucially, though, they should have professional support in making their Will to ensure its validity and that it represents their true wishes.
What is the difference between a Statutory Will and an ordinary Will?
The only difference between them is that a Statutory Will is authorised by the Court of Protection and then signed on the person’s behalf by their Deputy or Attorney.
When is a Statutory Will necessary?
The Court of Protection will not automatically authorise a Statutory Will. Whether one is necessary depends on the particular circumstances of the case.
The intestacy rules determine what happens to somebody’s estate if they die without making a Will. It may be that even though the person lacking testamentary capacity does not have a Will, the intestacy rules will nevertheless achieve the desired objective.
But let’s consider the example of somebody with a step-child whom they consider their own. Under the intestacy rules, the step-child inherits nothing (although they may have the right to bring an inheritance claim against the estate), so it may be appropriate to apply for a Statutory Will to ensure the step-child inherits from the estate in due course.
A person lacking testamentary capacity may have a valid Will but it is out of date. For example, all the beneficiaries may have died or perhaps in its current form it is very inefficient for Inheritance Tax planning purposes. In such cases, the Court may authorise an amended Will.
These are just examples, and there are many reasons why an application for a Statutory Will may be considered necessary.
Statutory will application
An application for a Statutory Will can be complex and time-consuming, so it’s advisable to take advice from an experienced Court of Protection solicitor. Among the documents and information which your solicitor is likely to require are:
- the person’s existing Will, if they have one;
- a draft of the proposed Statutory Will;
- full details of the person’s family;
- details of the person’s income and assets;
- medical evidence of the person’s mental capacity.
After the application has been made to the Court of Protection, the Official Solicitor will usually be appointed to represent the interests of the person lacking capacity.
It’s important to remember that anyone who would potentially be affected by the application will be a party to the proceedings. This will include any potential beneficiary who will be disadvantaged if the Court approves a Statutory Will.
How long does it take to obtain authority for a Statutory Will?
The answer depends partly on the Court’s current workload, but an uncontested case will normally take up to six months from when the application is made. However, it is possible to make an urgent application if there is a good reason, perhaps because the person has only a short life expectancy.