Statutory Wills

Sometimes, a will needs to be made on behalf of someone who does not have the mental capacity to make a will in the normal way.

A statutory will is a name given to a will which is put in place for someone who has lost the capacity to do it themselves.

In order to have the capacity to make a will, the Testator has to understand the implications of making a will, and the extent of his or her assets and be able to consider who they ought to benefit (even if they choose not to benefit all the people they consider). If a person lacks this understanding a normal will signed by them would not be valid as a result of a lack of testamentary capacity. Any solicitor or will writer acting in a professional manner would refuse to put a normal will in place in such circumstances. If a will is required but capacity is lacking, an application can be made to the Court of Protection for a statutory will to be put in place. A judge at the Court of Protection ultimately makes a decision as to what would be an appropriate will for the person who lacks capacity in line with the evidence produced.

A statutory will may be appropriate if, for example:

1. The person who lacks capacity had made it clear before they lost capacity they wanted a certain person to inherit his/her estate
2. The person who lacks capacity may have lived with a partner for many years but never married and never made a will. In the absence of a will, the partner would receive nothing and this would, in a lot of cases, not be appropriate
3. The person may have been involved in an accident and may have received a significant compensation claim but may have no will in place

There are many reasons why a statutory will may be required.

How To Apply For A Statutory Will?

An application needs to be made to the Court of Protection, setting out all of the financial circumstances of the patient, as well as the arrangements in place at the moment in connection with the care and all other details, allowing the Court to get a picture of the patient’s family life.

The application process is quite complex and a number of application forms and statements supporting the terms of the proposed will which should also be submitted in the draft, need to be compiled.

Our Court of Protection solicitors can guide you through this process if you wish to make an application for a statutory will for a person who lacks capacity. It is helpful if you are already a deputy for the person requiring a statutory will or an attorney under a Lasting Power of Attorney, although that is not essential.

Call one of our Court of Protection solicitors on freephone 01429 235 616 or arrange an interview to establish whether an application would be advisable.