A Guide to Statutory Wills

Statutory Wills are made by the Court of Protection on behalf of an individual (‘P’) who has lost capacity. The Court’s authority is derived from the Mental Capacity Act 2005 (MCA 2005).

When considering whether a Statutory Will can be made on behalf of an individual, their lack of capacity in respect of the making of a Will must be addressed.

When should a Statutory Will be considered?

A Statutory Will may be considered where P has lost capacity and:

• A property has been left as a specific legacy and the property has to be sold for nursing home fees.
• The estate has reduced in value.
• P is a young adult who have never made a Will, and he has received an inheritance or personal injury award.
• An existing Will names beneficiaries who have died.
• An existing Will makes no provision for events that were not anticipated, for instance, a couple has left their estate to one another without providing for a gift on the second death.
• A beneficiary under an existing Will has already received substantial gifts and it would be inequitable for the Will not to be adjusted to reflect those gifts.

A Statutory Will does not apply to immovable property outside England and Wales.

The Application Process

An application for a Statutory Will must be dealt with as a formal application to the Court of Protection.

The Court must have medical evidence to support the lack of capacity and it has to consider a number of factors and all the relevant circumstances. The Court is not looking for a result based on a hypothetical degree of capacity; instead, it must take P as it finds him at the present moment, and then act in his best interests, in the same way as any other decision made on behalf of a person without capacity.

Evidence of P’s wishes are extremely important, and the Court will be unwilling to impose a new decision when there is clear evidence of an earlier decision. At the same time, the Court is not bound by that earlier decision. Evidence of past wishes and feelings is one factor that needs to be taken into account, and the Court’s discretion is primarily over the weight to give to that factor, relative to other factors.

The Court will know nothing about P or P’s circumstances. This needs to be explained in sufficient detail, so that the Court can be persuaded that a Will should be made, and that the proposed Will is in P’s best interests. The applicant must not only show the value of the estate, income and expenditure (as well as any future expenses) and provide a testamentary history, but also explain why the application has been made, and why the proposed Will is in P’s best interests.

Beneficiaries or other witnesses should be asked to provide witness statements, containing a statement of truth.

If the application is unopposed the terms of the proposed Will may be agreed with the Official Solicitor. The Official Solicitor will then write to the Court providing details of the consents obtained, and giving his own consent. The Court will then determine the application on the papers, if necessary without a hearing. The Order is then prepared and sealed without an attended hearing.

The Hearing

If the application cannot be dealt with on the papers, further directions may be given for the service of evidence, preparation of trial bundles, exchange of skeleton arguments and set a hearing date.  The Judge will make the Order at the hearing, which will authorise the applicant or some other person to execute the Statutory Will in the form approved by the court.

Execution

A Statutory Will is executed in the same way as any other Will, except that the authorised person signs twice, once in P’s name and then once in his own name, and the will must be sealed by the Court.

Once the Statutory Will has been executed, the original Will must be sent to the Court with two certified copies, and the draft Will endorsed by the Judge. The Statutory Will is then sealed with the seal of the Court and sent to the person authorised to hold the Will, usually the applicant’s solicitor. The Statutory Will is the same as the Will of any other client: it is a confidential document and must not be disclosed without the consent of the Court during the lifetime of P or so long as P lacks capacity.

Emergency applications

Where the application relates to a Statutory Will and P is in danger of dying before the application can be heard within the usual timescale, the Court will try to assist. In extreme cases, the application may be heard within a matter of days, and the Court will authorise the applicant’s solicitor or the Official Solicitor to execute the Statutory Will. The Order is effective immediately it is made, and there is no need to wait for a sealed copy to be issued.

Costs

The usual rule is that the estate will bear the costs of the parties (CPR 2007, rule 156). However, this cannot be taken for granted. The applicant must also consider whether the estate will bear the considerable costs that are likely. If the estate is small, then however desirable a Statutory Will might be, the question of whether it is essential needs to be considered carefully.