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What is a statutory will?
A statutory will is one that is made on behalf of someone who has lost the mental capacity to make a will themselves or to change that person’s existing will. Where someone has lost capacity, other decisions about their life can be made by an attorney, if a power of attorney is in place, but only the courts can make a will for a person who has lost capacity.
It is important to note that a person who has lost mental capacity to manage their finances, may still be able to make a will. Therefore, in order to create a statutory will, the person wishing to make it will require medical evidence of loss of mental capacity.
Preparation for an application for a statutory will can begin when a person is 17 years old but the will can only be put in place once the person is 18 years old. Once approved, a statutory will works in exactly the same way as one that would have been made by the person who has lost mental capacity.
Why might a statutory will be necessary?
If a person dies without a will, their assets will be distributed according to the strict rules of intestacy, which might not be what the deceased would have wanted. Equally, if a will is present when a person dies, their estate will be distributed according to the wishes in that will. Again, this might not reflect what the deceased would have wanted at the time of death, particularly if the will was out of date and had not taken account of family changes, for example. You might wish to apply for a statutory will if the person who lacks capacity has:
- no will and never made one
- significant assets and tax planning may be necessary
- not made sufficient provision for a relative or relatives who have been caring for them
- a significant asset, such as a property, that is bequeathed in the existing will has been sold and is no longer valid – it may be possible to replace the bequest with something else
- one or more of the beneficiaries in the existing will have died and there is no provision for replacements
How should I apply for a statutory will?
If you wish to make an application for a statutory will, you have to apply to the Court of Protection. This is the court that was set up to look after the interests of vulnerable people who have lost the capacity to make decisions for themselves. It is the only court that can deal with applications for statutory wills.
The application can be complex and you would be wise to use the services of a lawyer who has experience in dealing with the Court of Protection.
What does the application involve?
When applying for a statutory will, several documents or copies of documents are required, including:
- A statement giving information about why you think the statutory will is required.
- Assessment of capacity – using a specific form called a COP3.
- Any existing will and amendments/codicils.
- Details of proposed executors and evidence of their agreement to act.
- Details of proposed beneficiaries and why they should be provided for in the new will.
- Any deputyship order that exists.
- Any lasting powers of attorney (LPA) or enduring powers of attorney (EPA).
- Details of any expected inheritance tax that may occur due to the statutory will.
- Information about the person for whom the statutory will is proposed, including:
- Confirmation that they live in England or Wales.
- Details about the family.
- Assets, income and spending.
- Current and future needs.
- Accommodation and costs.
- Medical condition and life expectancy.
What if the statutory will is required urgently?
You can make an urgent application to the Court of Protection if you think that the person for whom the statutory will is applicable is likely to die soon. This can be complex and is best completed by someone with experience of dealing with statutory wills, particularly as much of the information and documentation required for a standard application is still needed. If you wish to make an urgent application, explain the urgency to our specialist lawyers so we can help you meet the necessary requirements.
Who can apply for a statutory will?
Anyone can apply for a statutory will as long as they have the Court of Protection’s permission before making the application. However, certain people are exempt from obtaining the court’s permission before making an application. This includes:
- Court-appointed deputies.
- Public guardians.
- Attorneys under an LPA or EPA.
- Someone who, in an existing will or through intestacy, might become entitled to property, for example, a spouse.
- Someone who the person who has lost capacity might be expected to provide for.
There may be other circumstances where permission is or is not required, but you should seek legal advice if you require clarification.
Does a statutory will have to be signed?
Yes. Two copies have to be signed by the person who applied for it, who must also sign on behalf of the person who has lost mental capacity. The signatures have to be witnessed by two people over the age of 18 who must be with you when you sign and must sign the will straight after you. The will then has to be stamped by the Court of Protection.
What happens after you have made an application for a statutory will?
The Court of Protection will confirm that it has received your application and will send a ‘directions order’ that advises what should happen next. This might include an order to tell the official solicitor, who acts on behalf of those who cannot make decisions for themselves, about the application.
The directions might also tell you to advise anyone who is named in an existing will and might be affected by the proposed statutory will and anyone who would expect to benefit if the person died intestate, about the application.
A court hearing might be necessary if everyone involved does not agree with the terms of the proposed will. In this case, the court will appoint the official solicitor to represent the person who has lost capacity.
What does the court take into consideration regarding a statutory will?
The Court of Protection will make its decision about whether to approve an application for a statutory will based on the best interests of the person who has lost capacity. This will include assessing whether it thinks that the person may regain the ability to make a will and if so, when that might be.
For each case, the court will consider issues such as:
- The person’s own wishes – past and present and any written documents from the time when the person had capacity that might evidence this.
- How strongly held these wishes appear to be or have been.
- The practicality and rationality of these wishes
- How these wishes might affect others.
- How the wishes fit into the court’s own assessment of the person’s best interests.
- The degree of incapacity of the person.
- Any beliefs and values that might have influenced the decisions of the person.
- The views and opinions of other people who might have an opinion as to what is in the best interests of the person for whom the will is made, such as:
- Someone the person without capacity has previously consulted regarding such issues.
- Someone currently caring for the person.
- Attorneys named in an LPA or and EPA.
- Court-appointed deputies.
Can the application for a statutory will be opposed?
Yes. If it appears that any beneficiaries in an existing will, or those who would benefit under intestacy, will be materially or adversely affected by the provisions within the proposed statutory will, the Court of Protection will contact these beneficiaries. These people can oppose the new provisions. The court will make a decision based on all the evidence it has.
How long does it take to get a statutory will?
If no one objects to the proposed will, a statutory will normally takes around four to six months. This depends upon the court’s workload and could be longer during the current COVID pandemic.
How will I know if the statutory will has been approved?
The Court of Protection will let you know if the application has been approved or rejected. It will also advise you if you need to provide further information and if there will be a court hearing that you need to attend. If you need to attend a hearing, you can be represented by a solicitor.
How much does a statutory will cost?
The application cost is £365 (as at November 2020). Other fees may be applicable, which can include:
- £485 if a court hearing is required by the Court of Protection. This includes telephone hearings.
- Your solicitor’s fees.
- The official solicitor’s fees if one is appointed by the Court of Protection.
- Counsels’ fees if barristers are appointed.
How can Graysons help?
Graysons’ private client advisors have many years’ experience of dealing with all issues relating to wills, estate administration and powers of attorney and issues that involve the Court of Protection. One of our staff is a member of Solicitors for the Elderly and has specific expertise in matters relating to elderly and vulnerable people.
Contact us now to arrange a free, confidential meeting in which we can discuss how we can help you to make the application for a statutory will as stress-free as possible.