Statutory Wills

A Statutory Will is a will made through the Court of Protection under the Mental Capacity Act 2005 for someone who lacks the capacity to make a will themselves. The process can also be used to alter or amend a current will where there has been a change in circumstances. The will may have been made before compensation was received or beneficiaries under a previous will may have died or become estranged.

An application for the approval of a will can be made for anyone over 18, with contemporaneous medical evidence specifically assessing their ability to make a will and assets to dispose of in the UK. The contents of the Will need to be shown to be in their best interests.

The Mental Capacity Act requires that any decision made for ‘P’ must be made in his best interest. A series of cases have passed through the court culminating in NT v FS and ORS (2013) EWHC 684 and the formula for dealing with statutory wills is well established.

The best interest test is a subjective test and not one of substituted judgement, it requires consideration of all the relevant circumstances to determine what will be in the best interest of ‘P’.
Amongst the factors considered are;

• Past and present wishes and feelings.
• Beliefs and values.
• Family relationships.
• Other factors that the person would have deemed important.
• Taking into account anyone that cares or cared for them.
• Views of the appointed Deputy.

The decision is essentially a value judgement by the Court. The prominence of each of the factors is weighted differently from case to case depending on the specific circumstances and the evidence put forward.

Any application to the Court for the approval of a statutory will would require all those with an interest to be notified unless there were compelling reasons for the Court to agree to dispense with their notification. The Official Solicitor is also joined as a respondent to represent the wishes of ‘P’ independently. The decision is then only made after considering representations from each party and considering evidence of financial situation and family circumstances.

Where there is evidence to suggest ‘P’ is critically ill and has a limited life expectancy the Court will proceed quickly to approve a Will provided the delay is not that of the applicant and as long as it would not be unduly prejudicial to any interested party.

The costs of making an application for a statutory will can be considerable as the protected party will have to pay for representation for all parties with an interest in their estate and the fees of the official solicitor. This can be expensive even if the matter is agreed amicably. If the application is contested by anyone or requires a formal hearing to resolve any issues the costs could escalate therefore it is important to take legal advice and consider the likely costs before proceeding.

The court order authorising the execution of a statutory will authorises the applicant to execute the will approved by the Court. The will is signed twice by the authorised person – in his own name and on behalf of the incapacitated person. The will is then sent to the Court of Protection to be checked and sealed by the Court.