When an individual lacks the necessary mental capacity to make a Will for themselves, it is possible that a Statutory Will can be made for them. A Statutory Will looks and works very much like a regular Will. Under the Mental Capacity Act 2005, the Court of Protection has the power to make decisions on behalf of an individual who lacks the mental capacity to make those decisions for themselves. This power also enables the Court of Protection to order the execution of a Statutory Will.
In order to be able to make a Will an individual must:
- Be able to understand that they are making a Will, and the effect of making that Will.
- Know the nature and value of their estate.
- Understand the consequences of excluding/including certain people in their Will.
- Not be suffering from a disorder of the mind that might influence their views.
If a person without capacity signs a Will it may well be challenged by others on the grounds of lack of testamentary capacity. Where an individual lacks the necessary understanding required to be able to make a Will on their own an application should be made to the Court of Protection for a Statutory Will to be drafted and approved on their behalf. The Statutory Will must be made in the person’s best interests. Therefore, you will need to consider:
- What the person would do if they were able to make a Will themselves
- The person’s beliefs and personal values
- How the person has acted and made decisions for themselves in the past
If someone dies without a Will or they were unable to amend an existing Will, their estate may not be distributed in line with what they would have wanted. By making an application to the Court of Protection for a Statutory Will to be made on their behalf, you can make sure that a person’s wishes, as far as they are known, can be carried out when they die. However, it should be noted that The Court of Protection rarely allow a Statutory Will application to succeed and, ultimately, the Court must be convinced that authorising the execution of a Statutory Will is in the vulnerable person’s best interests. There are a few situations in which the Court may consider it necessary to grant a Statutory Will:
- the vulnerable person has never made a will before
- the estate has reduced in value
- the estate has increased in value, for example, as a result of compensation awarded
- a beneficiary (or beneficiaries) under an existing will has passed away
- a beneficiary under an existing will has already received substantial gifts, and the will should be adjusted
- if an attorney or deputy has had to sell an asset to pay for care, for example, but the asset was subject to a specific gift in the will. As the sale of the asset will result in the failure of the gift, the application for a Statutory Will is to give something to the specific legatee in lieu of the asset sold
To make a Statutory Will, you will need to complete a number of application forms. The application is sent to the Court of Protection and a decision is made on whether the Will is appropriate. Family members and other interested parties will be given the opportunity to comment on the Will. We are here to help and will be happy to guide you through each step of the process.
If you would like more information on Statutory Wills, please contact Lisa Hills Tagg or any member of the Private Client Department.