What is the procedure?
If a person (referred to as ‘P’) has lost capacity and does not have a valid or up to date Will to determine the distribution of their estate in the event of their death, this may be of concern to P’s friends or relatives.
Any person may apply to the Court of Protection for permission to make a Statutory Will application, but most applicants will fall within the category of ‘excepted applicants’, so may apply without permission being obtained from the Court.
The excepted categories of applicants are:
- P’s deputy;
- the Public Guardian;
- the Official Solicitor;
- P’s attorney under either an enduring or lasting power of attorney;
- a person who may become entitled to any property of P, or any interest in it, under P’s Will or intestacy; and
- a person for whom P might be expected to provide if he had capacity.
In the application it is necessary to set out detailed information about P, including all of their finances such as assets and expenditure, details of the family and a statement setting out why P might be expected to provide for the proposed beneficiaries. A draft of the proposed Will must also be provided to the Court.
Any person who is likely to be materially or adversely affected by the application should be named as a respondent. This would include any beneficiary under a current will or intestacy, and any other proposed beneficiary.
The Court may decide to join P as a party to ensure their interests are protected. In such a situation, the Official Solicitor will act as their litigation friend and respond to the proceedings on their behalf.
What will the Court consider?
The first hurdle in some cases will be proving that P does not have the capacity to make a Will for themselves. The fact that P is no longer able to manage their day to day affairs does not necessarily mean they have lost the capacity to determine who their estate should be distributed to.
Following this, the Court will have to be persuaded that there are grounds for departing from P’s current testamentary arrangements, i.e. their previous Will or intestacy. The Court will generally be willing to do this where P had never made a Will, or if there has been a significant change in P’s circumstances where P might be expected to review their arrangements, for example if P had children since their last Will.
Where there are issues with P’s previous Will, such as questions about whether it had been executed correctly or where there is doubt as to whether the wording effects P’s actual wishes, the Court will be reluctant to make a Statutory Will for this reason alone as they do not have the jurisdiction to rule on issues of validity or construction. However, where there are concerns that the previous Will was executed under undue influence or where P lacked capacity, the Court may be more willing to order that a Statutory Will should be made, on the basis that it would be in P’s best interests to do so.
P’s best interests are the main consideration of the Court in deciding whether to make a Statutory Will. This requires the Court to analyse several factors as set out in the Mental Capacity Act 2005:
- P’s past and present wishes (particularly any written statement made by P);
- the beliefs and values that would be likely to influence P if they had capacity;
- other factors which P would be likely to consider if they were able; and
- the views of any relevant people, for example their deputy or attorney, and anyone who is caring for P.
The approach to this analysis has changed recently, meaning the Court will conduct a balance sheet analysis and P’s wishes and feelings will not be the paramount consideration. Instead, the weight to be attached to each of these factors will vary from case to case, depending on the relevant circumstances.
If the Court determines that a Statutory Will is appropriate, the Court will make any amendments it feels are necessary to the draft Will and order that a Will in that form should be executed. The Court will also order who is to execute this Will on behalf of P.
That authorised person must then execute the Will in line with the usual rules, i.e. in front of two witnesses who must also sign to attest that they were present at the execution.
Once executed the Will must be sent to the Court to be sealed with the Court’s official seal.
If you believe a Statutory Will may be necessary for a person you know, or you have been named as a respondent in such an application, please contact us for further advice.
We also have guidance notes on other Court of Protection issues, such as authorising gifts, and a more general note on capacity.