The Court of Protection has the power to authorise the making of a Statutory Will for someone who has lost testamentary capacity to make a Will themselves.
The incapacitated person may lack capacity for many different reasons including through physical or mental illness, such as Dementia and Alzheimer’s disease, learning disability or brain damage following a road or other accident.
If an incapacitated person makes a Will it could subsequently be challenged on the grounds of lack of testamentary capacity and, if the challenge is successful, the Will could be set aside. In such cases, the estate will be distributed as per any previous Will or, if there is no previous Will, as per the rules of intestacy.
Consequently, a Statutory Will can be an extremely useful tool as, once made, the Statutory Will has the same effect as any other Will and, because it is made with the authority of the Court, it cannot be challenged in the same way as a normal Will.
A Statutory Will is made with the authority of the Court following an application by an interested party. The interested party could be a family member, beneficiary, attorney, deputy or any other person with an interest in the Will being made.
Reasons for making a Statutory Will:
- An existing Will may need to be changed due to changing circumstances of the incapacitated person.
- A change in the circumstances of a beneficiary(s), including charities, under a previous Will.
- A change in the relationship of the incapacitated person and the beneficiary(s), including charities, under a previous Will.
- A change in the relationship of the incapacitated person and the proposed new beneficiary(s), including charities.
- The family situation is complicated and the interested party wants to avoid a dispute after death or may have doubts over the validity of an existing Will.
- The interested party wants to make sure the estate is dealt with in as tax efficient way as possible.
- A Will has never been prepared before.
Application for a Statutory Will
The application should set out all the financial circumstances of the incapacitated person as well as the arrangements currently made for their care. It should also explain who forms part of their family and the nature of the relationships.
A doctor’s report is required confirming the person lacks capacity to make a Will.
A draft of the proposed Will setting out how the estate will be divided in the event of the incapacitated person’s death will also be provided to the Court.
What we can do for you?
We have years of experience preparing and submitting Statutory Will applications.
We will instruct an appropriate doctor to prepare the required medical report confirming lack of capacity and work with you to prepare the application papers, draft a suitable Will, gather all the evidence in support and ensure all the required people are served with the application.
If anyone disputes the proposed Will we will work with you to achieve a sensible outcome in the most cost effective way possible.
Our specialist tax advisors will ensure the Statutory Will is tax efficient.
The court will have to be satisfied that the proposed Will is in the best interests of the impaired person. Their wishes and feelings are extremely important and we take the time to obtain these as well as listen to your views and ensure these are all taken into account.
We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.