Statutory Wills: what are they and how do they work?
What are Statutory Wills?
A Statutory Will is a Will ordered by the Court of Protection on behalf a person who does not have the necessary capacity to make a Will themselves (“the patient”).
When will the Court of Protection approve a Statutory Will?
A Statutory Will can only be made on behalf of someone who is aged 18 or over and lacks the necessary capacity to make a Will for themselves within the meaning of section 2(1) of the Mental Capacity Act 2005. Whether someone has capacity depends on the decision to be made. For example, whilst a person may not have capacity to manage their affairs, they may have the necessary capacity to make a simply Will. If you are unsure whether someone has capacity, it is sensible to discuss your concerns with a solicitor and/or a medical professional.
The Court of Protection must be persuaded that there is a reason for departing from the patient’s existing arrangements, for example, the Court may decide to approve a Will if there has been a significant change in circumstances.
Who can make an application for a Statutory Will?
An application can be made by certain categories of people, including a person’s deputy, an attorney under an Lasting Power of Attorney or Enduring Power of Attorney, a person who benefits under a known Will or under intestacy (where there is no Will) and a person whom the patient may be expected to provide for if they had capacity to do so.
What is the process?
A formal process is followed, with the relevant parties having the opportunity to consider and discuss the proposed terms of the Statutory Will. If an agreement cannot be reached, the matter will go to a hearing. Throughout the process, the key question will be whether the Will being made is in the patient’s “best interests”.
What happens after the patient has died?
A Statutory Will has the same effect as an ordinary Will. The only exception is that it will not apply to immovable property outside England and Wales and may not apply in certain circumstances when the patient was domiciled outside England and Wales.