A Will is usually one of the most important documents a person has. It dictates exactly what happens to a person’s estate (i.e. all of their property) after they die. People often spend a lot of time carefully deciding who is to inherit what, and the process can be very complex.
But what happens when someone does not have or loses the capacity to make a Will or change their existing Will? This is where Statutory Wills can be used.
What are Statutory Wills?
Statutory Wills are Wills made under the authorisation of the Court of Protection under the Mental Health Act 2005. The Court of Protection makes these Statutory Wills on behalf of someone who does not have the capacity to do so themselves. They are used to reflect what the person lacking capacity would want to happen with their property after death.
Capacity relates to a person’s ability to make decisions for themselves. A person may lack the capacity for a variety of reasons, including situations where a person is in an accident and when a person develops dementia.
The Statutory Will will have the same effects as if it was made by the individual themself.
When is a Statutory Will needed?
There are many reasons why a Statutory Will may be necessary, and often these will vary from person to person. However, some common reasons are detailed below.
No Will in place already
You may consider applying for a Statutory Will if the person lacking capacity did not have a Will in place already. This could be a common occurrence if someone is injured in an accident and loses capacity.
If there is no Will in place, then the person’s estate will be distributed in accordance with the intestacy rules. This may vary greatly from what the person without capacity may have wanted, making a Statutory Will a good option.
Deceased beneficiaries
Another reason a Statutory Will may be appropriate is if a person who was to inherit under the Will (a beneficiary) of a person lacking capacity dies. In this case, the person lacking capacity may have wished to make alternative arrangements for the inheritance that were not specified or in line with their original Will. A Statutory Will could be appropriate here.
Change in estate value
It is also very possible that the value of a person lacking capacity’s estate can change greatly after a Will has been made.
One example may be that a person lacking capacity’s estate can decrease in value due to caring costs. Homes and other assets detailed in a Will to be inherited by beneficiaries may be sold to cover the cost of this care. It is possible that a Statutory Will would be appropriate here to allow the intended beneficiaries to receive whatever is left rather than the assets sold off.
On the other hand, the estate of a person lacking capacity may increase in value, for example, due to an increase in property value or investments. The person may have wished for these extra funds and property to be distributed differently from that in their original Will, making a Statutory Will necessary.
How do I apply for a Statutory Will?
Applying to the Court of Protection for a Statutory Will can be complex and time-consuming. For starters you need to fill in the application form and send this to the Court along with multiple other documents including:
- an assessment of capacity form signed by a medical professional,
- A copy of the person’s current Will,
- a copy of the proposed new Will or amendment,
- a family tree,
- any Executors’ details,
- details of the estate,
- details of the person lacking capacity.
among potentially many other documents.
The Court of Protection will also have to be satisfied that the decisions being taken to change the Will or create one is in the individuals best interests. The Court of Protection can look into a variety of factors to determine if the proposed Statutory Will is in the person’s best interests including what the person lacking capacity would do if they had capacity, what personal beliefs the person holds, the thoughts of the person’s family and loved ones, and potentially even how the person would like to be remembered.
The application fee for applying is £371; if a hearing is required then this will cost an extra £494. The application process can take around 6 months to be completed.
Contact our Probate Solicitors in Central London today
Given how complex an application for a Statutory Will can be and how much preparation is involved, it is crucial that you consider consulting with specialists. Our Probate Solicitors at Lewis Nedas Law are more than able to help you through this process and ensure that any application is given the best chance at success. Contact us on 020 7387 2032 or fill in our online contact form to get help from our team.
