When someone loses the capacity to make or change a Will, their estate planning options can become complicated. However, in certain circumstances, the Court of Protection can step in and create a Statutory Will on their behalf. But what exactly is a Statutory Will, when might it be needed, and how does the process work?
In this blog, we’ll explore the purpose, process, and importance of Statutory Wills, as well as the key considerations involved.
What Is a Statutory Will?
A Statutory Will is a Will that is made on behalf of a person who lacks the mental capacity to create or amend their own Will. It is authorised and approved by the Court of Protection under the Mental Capacity Act 2005.
A Statutory Will ensures that an individual’s estate is distributed fairly and appropriately in line with their circumstances, even though they are unable to make those decisions themselves.
When Might a Statutory Will Be Necessary?
A Statutory Will may be required in various situations, including:
The individual has never made a Will before – If someone lacks the capacity to make a Will and dies without one, their estate will pass under the Rules of Intestacy, which may not reflect their wishes.
A significant change in financial circumstances – If the person has inherited money, sold assets, or experienced changes in wealth, an existing Will may no longer be suitable.
The individual’s family circumstances have changed – Marriage, divorce, or the birth of new dependants may mean that the current Will is outdated or unfair.The existing Will is no longer appropriate – If the existing Will is outdated, unfair, or tax inefficient, a Statutory Will may be needed to better reflect the individual’s best interests.
Disputes or concerns over the current Will – If family members or professionals believe that the current Will does not align with the person’s known values or past intentions, they may apply for a Statutory Will to ensure a fair outcome.
Who Can Apply for a Statutory Will?
Only certain individuals can make an application for a Statutory Will, including:
🔹 A court-appointed Deputy under the Court of Protection
🔹 An Attorney acting under a Lasting Power of Attorney
🔹 Family members or individuals with a financial interest in the estate
🔹 The Official Solicitor, if no one else is available to act
The application is made to the Court of Protection, which will consider all relevant factors before making a decision.
How Does the Court Decide Whether to Approve a Statutory Will?
The Court of Protection will assess whether making a Statutory Will is in the best interests of the person who lacks capacity. They will consider:
🔹 The person’s past wishes and values –
What would they have likely wanted based on past conversations and actions?
🔹 The current financial situation –
Would the proposed Will provide fair distribution and protect assets?
🔹 The impact on family members and dependants –
Ensuring fairness for those who rely on the individual.
🔹 Any tax implications –
A well-drafted Will can reduce unnecessary tax liabilities.
The Court will aim to create a Will that best reflects what the individual would have wanted, had they had capacity.
The Process of Making a Statutory Will
Application Submission – The applicant (such as a Deputy or Attorney) submits a detailed application to the Court of Protection. This must include medical evidence proving that the person lacks capacity.
Gathering Evidence – The Court may require further details about the person’s financial position, previous wishes, family situation, and tax considerations.
Notification of Interested Parties – Close family members, beneficiaries, and other interested parties may be notified of the application to ensure transparency.
Court Decision – The Court considers all evidence and, if satisfied that a Statutory Will is in the person’s best interests, approves and executes the new Will.
Key Considerations and Challenges
🔹 Opposition from Family Members – Some relatives may challenge the proposed changes, particularly if they stand to lose an inheritance.
🔹 Time and Cost – Statutory Wills require legal and court fees, making them more expensive than a standard Will. The process can also take several months.
🔹 Mental Capacity Assessments – Robust medical evidence is required to confirm that the individual lacks the ability to make a Will themselves.
🔹 Tax Planning Implications – The new Will should aim to be tax-efficient while remaining fair to all beneficiaries.
Why Seek Professional Advice?
A Statutory Will is a complex legal process that requires careful planning, justification, and legal expertise. If you believe that a loved one’s Will needs updating but they lack capacity, seeking professional advice is essential.
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