The starting point for any application for a Statutory Will is an assessment of capacity to determine whether the person can make a Will or not.
A person with capacity to make a Will is able to do so if and when they wish, changing the Will as circumstances allow. However, a person must have “testamentary capacity” to make or change a Will. If a person lacks testamentary capacity to make or change a Will, either as the person has never had capacity or as a result of a loss of capacity due to accident or illness, the Court of Protection can be asked to authorise as Statutory Will. The starting point for any application for a Statutory Will is an assessment of capacity to determine whether the person can make a Will or not.
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When are Statutory Wills necessary?
If it is felt by family, friends or other people caring for the incapacitated person that an existing Will needs to be changed or a Will put in place, an application to the Court of Protection can be made requesting an order allowing a Statutory Will to be made. However, this is often an expensive process, and many consider that the cost may exceed the benefit of keeping the current Will or following the intestacy rules where there is no Will in place. Also, where there are estranged family members who would need to be notified, some decide that they would prefer to avoid a potentially contentious application.
What is involved in an application for a Statutory Will?
Usually the person needing the Statutory Will is represented by the Official Solicitor, so an independent person can put forward what is believed to be the wishes of the person. This is done in consultation with all parties in the case and looking at records of past wishes and feelings (where available). The parties will be those making the application, people named in an existing will or those entitled to inherit the estate under the intestacy rules where there is no current Will. The application to the Court of Protection requires a large amount of information, including previous Wills, a family tree, details of capital, income and expenditure, along with an estimated life expectancy of the person. This helps the Official Solicitor in formulating a response on behalf of the person and assists the Court in allowing a decision to be made on what is in the person’s best interests.
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Do you need help with the following?
- Attorney Applications to the Court
- Deputyship Orders
- Statutory Wills
- Gift Applications
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Court of Protection Team
Samantha is a Solicitor and Member at Mullis & Peake and heads our Court of Protection team