Statutory Will Solicitors in Essex - Romford, Brentwood, Upminster
What is a Statutory Will?
Statutory Will Definition
A person with capacity to make a Will can do so if and when they wish, in whatever terms they wish. 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 because they have never had capacity or lose capacity due to accident or illness, then the Court of Protection can be asked to authorise a Statutory Will.
When are Statutory Wills Necessary?
Situations Requiring a Statutory Will
A Statutory Will will only ever apply to a person who lacks Testamentary Capacity to make or amend their own Will.
There are many reasons why a Statutory Will may be required, including but not limited to:
- To carry our the individual’s wishes with respect of inheritance. This is particularly relevant for those who have not yet made a Will but whom would want their estate to pass to someone other than those entitled under the Intestacy Rules;
- Change of circumstances from when the individual made their Will. For instance, inclusion of additional family members (who were not born prior to the loss of Testamentary Capacity) or to include a Trust to safeguard funds for future generations;
- Amendments where there are concerns about undue influence for a previous Will.
Why Can't I Make a Normal Will?
If a person lacks Testamentary Capacity to make a Will, then they will not be able to amend or make a Will.
If a Will is deemed to be in the best interests of this individual, then an application has to be made to the Court of Protection for a Statutory Will to be implemented.
The Role of Mental Capacity in Statutory Wills
Statutory Wills can only be made for those who lack mental capacity to make their own Will (Testamentary Capacity).
Understanding Testamentary Capacity
It should be noted that Testamentary Capacity is a very specific test about whether an individual has capacity to make a Will.
It is possible for the individual to lack mental capacity for other decisions, such as the management of their day-to-day finances, but still have the ability to make or change a Will.
The test for Testamentary Capacity was set out in the Banks v Goodfellow case, as follows:
- Whether the person making the Will (“the Testator”) understood the nature and effect of the Will;
- Whether the Testator understood the extent of the property which they are disposing of;
- Whether the Testator was able to comprehend and appreciate the claims to which they ought to consider (those who should potentially be beneficiaries).
The Application Process for Statutory Wills
How to Apply for a Statutory Will
In order to create a Statutory Will, an application has to be made to the Court of Protection. This is regardless of whether the individual (“P”) has an Attorney or Deputy already in place.
The first step in considering a Statutory Will is to establish whether P has testamentary capacity. It should be noted that just because someone has a particular diagnosis or if they have been deemed to lack capacity to make other decisions (such as daily management of finances), this does not automatically mean that P would lack testamentary capacity.
Once the lack of testamentary capacity has been established, an application has to be made to the Court of Protection. As part of the application, or early dealings by the Court, it will be necessary to notify all potential beneficiaries (under the Intestacy Rules or previous Will) about the changes which are proposed within the Will.
The Court will usually appoint the Official Solicitor to act on behalf of P.
The court process following this stage will depend on the reason for the Statutory Will application and the responses from those who would be impacted.
Statutory Will Application Requirements
The application for a Statutory Will includes the application itself, a detailed witness statement and relevant information about P’s current Will/ intestacy rules and finances.
It will be necessary to prove to the Court that P cannot make a Will themselves and that a Statutory Will is in the best interests of P.
Statutory Will Form: Guidelines and Considerations
When considering the best interests, the Court must be satisfied that the applicant has considered:
- What P would do if they were able to make a Will themselves;
- P’s beliefs and personal values (not those of the applicant);
- How P acted and made decisions for themselves in the past.
Urgent Applications for Statutory Wills
It is possible to apply for a Statutory Will where a person only has a short time to live.
However, it should be noted that there will still be the opportunity for other people (typically those who will be negatively impacted from a change in the Will) to object. Although the application would be considered ahead of others, this does not necessarily mean that a Statutory Will would be completed quickly.
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Factors Considered by the Court of Protection
Factors the Court Considers in Statutory Will Applications
The Court will consider the application and will usually ask that the Official Solicitor act on P’s behalf.
Considerations will be given to all factors put before the Court, including:
- Previous beliefs or values which P had held;
- The value of P’s estate;
- The impact which the Statutory Will has on P’s current Will/ the intestacy rules;
- The obligations which P has when making a Will.
Making a Statutory Will
How is a Statutory Will Executed?
Once the terms of the Statutory Will have been agreed by the Court of Protection, it is necessary for the Will to be executed in a similar way to that which a “normal” Will is.
There are additional requirements in that specific clauses need to be included within the Wills (making reference to who is signing on behalf of P) and the Will should be signed in both P’s name and the person authorised to sign the Will, in the presence of two witnesses.
Once signed, the Will must then be sealed by the Court of Protection.
Costs Associated with Statutory Wills
Statutory Will Costs: What to Expect
The creation of a Statutory Will is usually an expensive process.
The Court fees will consist of the initial application fees but additional charges may be applied if hearings are required.
In terms of legal fees, consideration should be given to the fact that all costs are usually taken from P’s estate. This will include any fees connected to the initial application, the legal fees incurred with the Official Solicitor and any legal fees incurred by those who request to be parties to the application. Anyone who will be impacted by the Statutory Will and is notified of the application can request to be a party.
Funding Options for Statutory Will Applications
Statutory Wills are typically funded from P’s finances. It is possible to apply for exemptions from the Courts.
Statutory Wills After Death
Statutory Will After Death: Implications for the Estate
Once a Statutory Will has been executed, it holds the same legal standing as a Will make by the individual themselves.
The Executors appointed within the Will are responsible for administering the estate in accordance with the terms of the Will.
What Happens if a Statutory Will is Not Made?
Without a Statutory Will, the default position will be that P’s estate is administered as per any previous, valid Will or in accordance with the intestacy rules.
It is possible for the beneficiaries due to receive inheritance to vary the Will/ Intestacy Rules. However, this can have legal implications and independent advice should be sought to understand the impact which this will have on those looking to give up their inheritance.
Common Challenges and Misconceptions
It is still a common misconception that if someone dies without a Will, then their estate will pass to the State/Crown/Government. This is not correct.
There is a hierarchy called the intestacy rules which mean that a person’s estate will be divided between those blood/adopted family members who are first entitled.
Alternatives to Statutory Wills
Lasting Powers of Attorney
If a person has capacity to make an LPA, then consideration should be made as to whether they have capacity to make a Will.
Court of Protection Deputyship Orders
Neither an LPA or Deputyship Order allow for a Will to be made for a person who lacks capacity.
If the individual lacks Testamentary Capacity, then only the Court of Protection can authorise a Statutory Will. However, the appointed Attorney/Deputy would likely be the best positions to make such an application to the Court of Protection due to the management of finances.
Frequently asked questions
Charges for Wills will vary depending on the complexities.
However, making a Will yourself while you have Testamentary Capacity will be significantly cheaper and easier than making a Statutory Will application.
A Statutory Will is a Will which is authorised by the Court of Protection when the individual lacks capacity to make the Will themselves.
If an incapacitated person’s (“P”) has never made a Will or their Will is now outdated, then those closest to them may feel that it is necessary to make an application to the Court of Protection to request that a Statutory Will is made.
The process of creating a Statutory Will is usually expensive and many may consider that the costs and work required in making the application exceed the benefits of keeping the current Will or following the Intestacy Rules (where there is no Will in place).
The initial step in making a Statutory Will application is to consider whether the vulnerable person (“P”) lacks Testamentary Capacity.
Once lack of capacity has been established, an application can be made to the Court of Protection with a proposed Will and notifications to all those who will be impacted by the Will (even if their entitlement is not changing).
Usually P will be represented by the Official Solicitor, who will act as an independent body to consider what is believed to be P’s wishes and beliefs, as well as the considerations which P would have to have made if making the Will themselves.
There is then a consultation process with all parties, which can include those named in an existing will or those entitled to inherit the estate under the intestacy rules.
The application to the Court of Protection requires a large of information including details of all previous Wills, a family tree, details of all finances (capital, income and expenditure) along with an estimated life expectancy for P. the Official Solicitor then uses this information to formulate a response on behalf of P and assists the Court in allowing a decision to be made in P’s best interests.
It should also be noted that if there are any objections to proposed changes to the Will/ creation of the Will, then the matter can include hearings at Court (which escalate the costs) and can lead to a contentious application.
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Martyn is a consultant and specialises in contested Wills and personal injury.
Trudi is a Senior Associate at Mullis & Peake, with extensive experience in the Wills and Probate field.
