Statutory Wills: Future Planning for Vulnerable Individuals

Having a Will in place is often overlooked. In a recent study conducted by Canada Life, it was found that half of UK adults are believed to not have a Will in place at all. And how many of us regularly review and update our Will to ensure that it reflects our current circumstances and wishes?

Testamentary Capacity

To make a Will, an individual must have mental capacity. They must understand the nature of making a Will and its effects. A general understanding is necessary as to the assets that are being disposed of and also consideration must be given to who is included in the Will and who is not.

If an individual is found to not understand these issues, then they cannot make a valid Will or amend an existing Will. In these circumstances, an application for a Statutory Will can help.

So, what is a Statutory Will?

A Statutory Will is a Will that is made on behalf of a person who has lost testamentary capacity.

An application must be made to the Court of Protection to execute the Will.

The application will note the financial status of the person, their care and living needs, their relationships with their family and friends and also will require a doctor’s report. A proposed draft Will is also submitted to the court.

Usual scenarios where a Statutory Will is considered necessary include:

• The incapacitated person has not made a Will previously and the intestacy rules do not    reflect the known wishes of that person or would not produce a fair result.
• An existing Will does not reflect the current position and can be preventing the sale of property or an asset which could help the individual.
• The estate has significantly increased or decreased in value.
• Tax Planning purposes.

The Court of Protection: Acting in the Best Interest of the Vulnerable Person

The Court of Protection will consider first and foremost whether executing the Statutory Will is in the best interests of the individual.

The court will review any known information about the person’s past and present wishes and general beliefs and values as well as their care providers’, attorneys’, or deputies’ views.

The court will also consider how the person would be remembered after their death and, if possible,will try to get the vulnerable individual to participate.

Statutory Wills can be contested, which is something that should also be borne in mind whenconsidering whether it is in the best interests of the vulnerable individual to execute the Will.

An application to the court to execute a Statutory Will is complex and it is therefore important to receive expert advice if you believe a vulnerable individual would benefit from a Statutory Will or if you would like to challenge an existing Statutory Will application.

Our team have considerable experience in successfully making applications for Statutory Wills. If you have a situation where you think a Statutory Will could help, please do contact our Disputed Wills and Trusts team.