Statutory Wills – FAQs

What is a statutory Will?

A statutory Will is a Will authorised by the Court of Protection to be signed on behalf of an individual who has been deemed to lack testamentary capacity.

What is testamentary capacity?

Testamentary capacity is a legal term used to describe a person’s mental ability to make a Will.

The test for capacity is based on case law and requires the person to:

• Understand the nature of making a Will and its effects;
• Understand the extent of the property of which they are disposing;
• Be able to comprehend and appreciate the claims to which they ought to give effect;
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

Capacity can fluctuate and the level of capacity needed may change depending on a person’s individual circumstances, their needs and the particular decision that needs to be made.

An attorney acting under an enduring or lasting power of attorney or a deputy appointed under an order of the Court of Protection does not have authority to make a Will without permission from the court.

When would a statutory Will be needed?

• The person has not made a valid Will already:

Where there is not already a valid Will, an estate would be dealt with under the intestacy rules set out in legislation (governing England and Wales). This means that the assets belonging to the person who has lost capacity might not go where they would want them to.

If the person has not made a valid Will and there are no known living relatives, it can be hard to work out how the estate is distributed. The court might consider whether the person has any certain friends or particular charities or causes that they might have wanted their money to go to and making a statutory will is the only way to be sure this happens.

• There has been a change to the estate:

If the financial assets of the person who has lost capacity has changed,  it might be useful to update or make a new Will. For example, the person may have received inheritance or a compensation award and it may be in the person’s best interests to have a Will made on their behalf to deal with those assets.

• Tax:

There may be circumstances where it is thought to be in the person’s best interests to create a Will for tax planning purposes, in order to mitigate the tax payable on that person’s death.

• Significant changes in circumstances:

There may be circumstances where the person’s wishes and feelings around who they would like to inherit change. For example, the beneficiaries appointed under a Will have passed away, or their relationship with the person might have changed.

How is a statutory Will made?

A statutory Will can only be made via an application to the Court of Protection.

The court would consider any previous Wills made by the person, as well as any evidence about  their wishes and feelings. The court has the ability to decide how much weight should be given to any previous or current Will made by the person who has lost capacity.

If the court thinks that it would be in the person’s best interests to allow a statutory Will to be made, the draft Will would be signed on behalf of the person and it then would become a valid, legal Will.

How can Morr & Co help?

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact Morr & Co’s Court of Protection team on 01737 854 500 or email info@morrlaw.com

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.