Holly Minney
Court of Protection
What is a Statutory Will?
It is believed that around 60% of adults in the UK do not have a valid Will and many of those who do have a Will admit that they are largely outdated.
It is true to say that no one wants to consider their own demise, but failure to leave a valid Will can cause issues for those who are left behind. The intestacy rules dictate who is entitled to benefit where there isn’t a Will, but these may not be in line with the wishes of the person leaving an estate.
While an individual has mental capacity to make a Will, they are free to make and amend a Will to leave their estate to whomever you want.
For those who lack mental capacity to make a Will (known as testamentary capacity), the process of making a Will is a lot more complicated. In these circumstances, the Court of Protection (COP) can authorise a Statutory Will to be created.
For this, an application is made to the COP, typically by an Attorney or Deputy, for a Will. Within the application it is necessary to set out why the Will is in the best interests of the person lacking capacity, notifying everyone who will be impacted by the creation of the statutory Will (including all current and proposed beneficiaries) and providing full details of the finances within the Estate.
Once with the COP, the Official Solicitor will be appointed to represent the vulnerable individual. It is also possible for those impacted by the Statutory Will to become a party to the application and appoint their own legal representatives.
The process of obtaining a Statutory Will can also be quite long, with some taking multiple years to complete. The COP can consider urgent applications, however this will depend on whether there are any objections to the application which has been submitted.
Overall the process of making a Statutory Will is usually long and expensive. This is exaggerated further if there are objections to the proposed Wills which will inevitably lead to further discussions and Court hearings.
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Janeet Jawanda
Callum Hall
Hannaley Palmer, Associate Solicitor in the Court of Protection team, said:
“It is often after someone has lost capacity that issues regarding a Will are identified. A Statutory Will should always be considered as a last resort due to the costs and complications which can arise.
“Statutory Wills are often disputed by those who are negatively impacted by the change, which can include distant family who do not have contact with the vulnerable person (entitled due to the intestacy rules). The vulnerable person is unable to make their wishes known and this is why the Court of Protection have to be very careful in considering any applications for a Statutory Will.
“It is important that everyone who is able to considers making a Will. This gives each individual the full flexibility and choice to include those they want within their Will. In the event that this has not been possible, or there has been a change which means that an existing Will is no longer appropriate, then a Statutory Will can be considered.
If you wish to discuss the process of making a Statutory Will on behalf of someone else in more detail, a member of the Court of Protection team would be happy to discuss this with you. Contact our Romford office on 01708 784000 for more information.”