A Will is a legal document that outlines your wishes regarding how your assets should be distributed after you pass away. It allows you to decide who will benefit from your estate, helping to avoid potential disputes. Over time, significant life events like marriages, divorces, and births can change your intentions, making it important to update your Will accordingly. However, to make or amend a valid Will, a person must possess the mental capacity to do so. If someone loses this capacity, they cannot make changes to their Will, even if their circumstances or wishes change. This presents a challenging situation, but a solution exists in the form of a Statutory Will. If you have a loved one who lacks the mental capacity to make a Will or amend an existing one, you may be able to apply for a Statutory Will. This blog will explain what a Statutory Will is, how it works, and what you need to know about the application process.
A Statutory Will is a legal instrument created on behalf of an individual who lacks the mental capacity to make one themselves.
The Court of Protection, a specialised UK court that makes decisions for people lacking mental capacity, is responsible for making these Wills.
The authority of the Court of Protection to make such Wills is derived from the Mental Capacity Act 2005. A Statutory Will is designed to have the same legal standing as if the person had made the Will themselves.
It is crucial to note that a Statutory Will can only be made for someone who lacks the mental capacity to make a Will; if the individual has the capacity, they must make the Will themselves.
The primary purpose of a Statutory Will is to ensure that the individual's assets are distributed in line with what the court determines to be in their best interests, given their past wishes, current situation, and the interests of those connected to them.
It's often seen as a protective measure to ensure fairness in cases where existing arrangements may no longer reflect what the person would want if they had mental capacity.
Several conditions must be met for an application for a Statutory Will to proceed:
- The person must be over 18 years old.
- They must lack the mental capacity to make a Will, as defined by the Mental Capacity Act 2005.
- They must be domiciled in England or Wales unless the application concerns immovable property within those jurisdictions.
Domicile is a complex legal concept but, in simple terms, it refers to the place where someone considers their permanent home.
It is possible to be physically located elsewhere while still being domiciled in England or Wales, especially in situations where someone has spent most of their life in one of these countries or intends to return there.
To apply for a Statutory Will, it must be shown that the person lacks the mental capacity to create or alter a Will. The Mental Capacity Act 2005 sets out the following test for mental capacity:
Can they understand information relevant to the decision?
Can they retain that information, even briefly?
Can they weigh up or use the information in making a decision?
Can they communicate their decision by any means?
If any of these criteria are not met, the person is considered to lack the mental capacity required for decision-making related to creating or changing a Will.
It's important to note that mental capacity can vary. A person may lack the capacity to make a Will but still be capable of making other decisions. Additionally, some conditions may cause fluctuating capacity, meaning a person may have capacity on some days but not others.
By default, the law assumes that everyone has the capacity to make decisions unless evidence shows otherwise. A detailed capacity assessment is essential to determining whether a Statutory Will is appropriate.
If you are seeking to apply for a Statutory Will on behalf of a loved one, the process begins by submitting an application to the Court of Protection.
You may need the court's permission to proceed with this application, although some individuals are exempt from this requirement. You do not need permission if you are:
1. A Deputy appointed by the court to make decisions on behalf of the person lacking capacity.
2. An Attorney under a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA).
3. Someone with a legal interest in the person's estate, either through intestacy rules or an existing Will.
4. Someone whom the individual might reasonably be expected to provide for if they had capacity.
The application process requires several key documents and information, including:
- A draft of the proposed new Will.
- Reasons explaining why the proposed beneficiaries would reasonably expect to inherit.
- Consent from the proposed executors of the new Will.
- Copies of any existing Wills or codicils.
- Copies of any relevant LPAs or EPAs.
- Details of the individual's family and current financial situation.
- Medical evidence confirming the lack of mental capacity.
- Confirmation of domicile in England or Wales.
Applying for a Statutory Will can be costly, as the process typically involves legal fees, court fees, and professional assessments, all of which are paid from the estate of the person lacking capacity. It is worth considering this carefully, as the application process may diminish the value of the estate.
If time is of the essence - for example, if the person is not expected to live much longer - you can submit an urgent application.
In this case, additional evidence about the individual's condition will be required, along with explanations for the urgency. Even in these situations, the court will notify potential beneficiaries, especially those whose interests may be negatively affected by the proposed Statutory Will. These individuals may contest the application.
Anyone who is negatively affected by a proposed Statutory Will, such as existing beneficiaries, may contest the application. These objections can lead to a court hearing where the court decides whether to proceed with the Statutory Will. The hearing will weigh up the views of interested parties, the evidence provided, and the best interests of the person lacking capacity.
The guiding principle for the Court of Protection is what is in the best interests of the person lacking capacity. Before making any decisions, the court must determine whether the individual is likely to regain capacity in the near future. If there is a possibility that the person could eventually make their own Will, the court may delay proceedings.
In cases where there is hope that the individual may regain mental capacity, it's essential to give them every opportunity to make their own decisions. If and when they regain the ability to make a Will, it will be necessary to take extra steps to ensure the Will's validity. This reduces the risk of legal challenges on the grounds of previous incapacity.
If it is unlikely that the person will regain capacity, the court will proceed to assess what would be in their best interests. This assessment includes consideration of several factors, such as:
- Past and present wishes and feelings of the individual.
- Their beliefs and values that may have influenced decisions.
- Any other factors the person would likely consider.
- The views of individuals close to the person, such as family members, carers, Attorneys under an LPA, or Deputies.
The court is required to consider these factors without making assumptions based on superficial characteristics like age or condition.
While the court will make every effort to take the individual's past wishes into account, these wishes are not the deciding factor.
The court will weigh the individual's wishes alongside other considerations to arrive at the outcome that best serves their interests. Factors influencing the weight of the person's wishes include:
- The severity of their mental incapacity.
- The consistency or strength of the expressed wishes.
- How rational or practical those wishes appear.
- The overall context of the individual's life and best interests.
Although the court will take into account what the person may have done had they had capacity, the Court of Protection has clarified that its role is not merely to step into the shoes of the individual. Rather, the court's role is to make a decision that best serves the individual's current situation, acknowledging that they no longer have the capacity to make their own Will.
Once the court approves the Statutory Will, it is executed in a manner distinct from a typical Will. It is signed on behalf of the individual by an authorised person in the presence of two witnesses. The Will is then sealed with the official court seal, giving it legal effect.
Premier Solicitors, a leading law firm in the UK, specialises in providing professional and affordable legal services, including Statutory Wills and Court of Protection matters.
Our experienced solicitors are here to guide you through the process of applying for a Statutory Will, ensuring that your loved one's best interests are fully protected and their estate is managed with care.
To learn more about how we can assist you with Statutory Wills or any other legal matters, please contact us at 01234 358 080, or visit our contact page to submit an enquiry form.
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