Lifetime Planning and Wills specialist, Jenny Greenland, explains what is meant by a Statutory Will, and when one may be required on behalf of a loved one.
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Sometimes a person needs a Will or requires changes to their existing Will, but they do not have the necessary mental capacity – referred to as testamentary capacity. In this situation, it’s possible to apply to the Court of Protection for authority to make a Statutory Will on their behalf.
What is testamentary capacity?
Testamentary capacity is a term describing a person’s legal and mental ability to make a valid Will. If a person does not have testamentary capacity when they make their Will, it’s invalid.
It’s important to stress that if somebody suffers from dementia, it does not automatically mean 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, anybody with dementia should have professional support in making their Will. Doing so ensures 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 requires authorisation by the Court of Protection. Once authorised, the person’s Deputy or Attorney signs it on their behalf.
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.
For example, the intestacy rules determine what happens to somebody’s estate if they die without making a Will. Although a person lacks testamentary capacity, the intestacy rules may nevertheless achieve the desired objective. In that case, they won’t need a Statutory Will.
But let’s consider the example of somebody with a step-child they consider their own. Under the intestacy rules, the step-child inherits nothing (although they may have a claim under the Inheritance Act). So, applying for a Statutory Will may be appropriate to ensure the step-child inherits from the estate in due course.
A person lacking testamentary capacity may have a valid but out-of-date Will. For example, all the beneficiaries may have died, or maybe it’s very inefficient for Inheritance Tax planning purposes. In such cases, the Court may authorise an amended Will.
These are all just examples, and there are many reasons why an application for a Statutory Will may be 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 will need is:
- 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 applying to the Court of Protection, the Official Solicitor represents the interests of the person lacking capacity.
It’s important to remember that anyone potentially affected by the application will be a party to the proceedings. This will include any potential beneficiary disadvantaged if the Court approves a Statutory Will.
How long does it take to obtain authority for a Statutory Will?
The timescale depends on the Court’s current workload. Typically, however, an uncontested case can take about six months from the date of the application. But it’s possible to make an urgent application if there is a good reason. Such a scenario might be the person having only a short life expectancy.