What is a statutory Will?

A statutory Will is a Will made by the Court of Protection for a person who lacks the understanding needed to make a new Will or update an existing one.

Who can apply for a statutory Will to be made?

A wide variety of people can make an application to the Court of Protection for a statutory Will including deputies and attorneys. Some people will need the Court’s permission before they apply.

Why might a Will be needed or changes made to an existing Will?

If a person dies with no Will everything they own at the time of their death (their estate) will be distributed according to the ‘rules of intestacy’. These rules set out the order in which the relatives of the person who has died become entitled, and the share that they will receive. If the person has no relatives then their estate will pass to the state.

Sometimes the rules of intestacy can be relied on to produce a fair distribution of a person’s estate. If that’s not the case, then Court may agree that a statutory Will should be made.

Sometimes an incapacitated person may already have a will but it is out of date. This might be because beneficiaries have died or had little contact with the incapacitated person for many years. Perhaps relationships have been renewed, or new friendships formed. A new or updated Will may also be needed for tax planning purposes

Who represents the interests of the incapacitated person?

The court will ask the Official Solicitor to do this. The Official Solicitor is a civil servant with staff to assist him or her. There is a specialist team that deal with statutory Will applications.

How does the Court decide what goes into a new Will?

The starting point, as with all matters that become before the Court of Protection, is medical evidence. The Court will need to see a Capacity Report that confirms that the person is no longer able to make a Will due to mental incapacity.

The person making the application (the applicant) provides the Court with a draft of a Will that they think the Court should make.

That draft Will must be supported by evidence showing that it would be in the best interests of the incapacitated person for the will to be made.

What does ‘best interests’ mean?

This is a complex issue and will depend on the circumstances of the individual. QualitySolicitors would be pleased to discuss this with you.

Does anyone else need to know about the application?

In most cases the answer will be yes. The Court will direct who should be notified. Usually it is those persons who will be affected by the terms of the proposed Will so that they have an opportunity to object, or otherwise contribute to the process.

Is there a Court hearing?

Sometimes. It is often possible to reach agreement about the content of the Will with the Official Solicitor. In those circumstances the Official Solicitor will attend in the hope that the Court will agree to the Will proposed.

If it is not possible to reach agreement with the Official Solicitor or other parties who may have joined the proceedings, the matter will go to a hearing before the judge.

Who pays for the application?

That decision rests with the Court of Protection. If all parties have acted reasonably then it is likely that the Judge will make an order that costs are paid by the person who lacks capacity. However there are no guarantees and if a party has acted unreasonably they could be ordered to pay their own costs and/or the costs of other parties.

Who looks after the will?

In most cases it will be the solicitors acting for the applicant.

What happens when the incapacitated person dies?

On production of a death certificate, the statutory Will is released to the executors named in the Will.

When does the Court of Protection authorise gifts?

Deputies can be authorised to make gifts by the court order appointing them. Attorneys may have the power to make gifts, depending on the terms of the Enduring or Lasting Power of Attorney.

The Court’s approval must be sought if the deputy or attorney is to benefit from the proposed gift, or if the gift is large.

The procedure for obtaining approval for gifts is very similar to that for putting in place a Statutory Will.