Most people know that making a will is a good idea, as it is the only way to say how you want your estate to pass on death. If a person is over 18 and lacks the mental capacity to make a will, then an application can be made to the Court of Protection for a statutory will to be made on their behalf.
The Mental Capacity Act 2005 allows the Court to authorise a will to be made on behalf of someone who does not have capacity to make a will. There is a general principal under the act that any decision must be made in the best interests of the person affected by the decision.
Applications for a statutory will involve considerable thought and paperwork and the Court has issued a practice direction for guidance. The practice direction must be followed and all the information required must be included in the application, otherwise it could be rejected or delayed. The information includes a family tree, financial information and a witness statement setting out the background about the incapacitated person, their medical condition, assets and needs and how their estate would be distributed under the proposed will.
The Court can accept the application “on the papers” or alternatively there may be a hearing.
In either case it is likely that the Court will appoint the Official Solicitor to advise and act for the incapacitated person in the creation of a statutory will. The person making the application works with the Official Solicitor to reach an agreed draft of the will, which is then approved by the Court. The Official Solicitor will consider what the person would have wanted and who they would include in their will if they were able to voice their wishes.
Without a statutory will a person’s estate will be dealt with in accordance with their last will (which may be out of date) or if there is no will then assets would be distributed to the next of kin in strict order (known as the intestacy rules) which may not be what the deceased would have wanted. An application can be made to the Court of Protection to avoid the intestacy rules or to avoid an unfair outcome.
The preparation for an application can be commenced once a person turns 17, as it can take several months to collect the information required and prepare the application and several more months for the application to be processed. It can only be finalized once the person is over the age of 18. The application is usually made by the Deputy for person for whom the will is being made, however if an adult made a Lasting Power of Attorney before losing capacity then an Attorney can make the application. Other people can make an application for statutory wills but may need the permission of the Court to do so.
We secured a statutory will for a young adult, Janine, who was damaged at birth and is estranged from her father. Without a statutory will, Janine’s estate would potentially have been distributed equally between her parents. Significant efforts were made to trace the father to inform him about the application but he could not be located. The will approved by the Court left a sum of money to Janine’s school, which is a charity, and small sums of money to her grandmother and aunt, with the majority of the estate passing to Janine’s mother who has looked after her throughout her life.
We have also secured a statutory will for a young adult, Eric, who suffered a serious illness in infancy, which was not properly treated and he was left with brain damage. His parents’ relationship ended acrimoniously and he has not seen his father for over 10 years. The proposed statutory will excluded Eric’s father. As part of the application to the Court, a request was made that the father not be informed about the application, due to the difficulties between his parents, The Official Solicitor’s position was that this was unfair, so the father was informed. However, as no objections to the will were received, the Court approved a statutory will, leaving the entire estate to Eric’s mother.
We put in place a statutory will for James, a 67 year old man who was born with learning difficulties. In 2006 James was involved in a car accident in which he suffered serious spinal injuries and he received an award of damages. The will appointed professional Executors to administer the estate because James’ siblings did not feel able to take on the role and the estate will be divided between his closest family members who see him regularly.
Our advice is to always get professional help with a statutory will. To discuss making a statutory will get in touch for a free initial telephone conversation with the team on 0800 884 0722 or email us at firstname.lastname@example.org.
Anthony's Case - Deputyship
Yvonne’s Case – Deputyship
Jamie’s Case - Deputyship