In this article originally produced for the May edition of the Institute of Professional Willwriters (IPW) journal, Ann-Marie Aston, Partner at The Wilkes Partnership examines Statutory Wills and how applying for one in certain instances could be the correct course of action for a client lacking capacity.
A Statutory Will is one where the court of protection makes a Will for a person who lacks mental capacity to make a Will for themselves.
In the majority of cases, even where capacity to make a Will is lacking, it may not be in that person’s best interest to make an application to the court for a Will to be made in the circumstances.
So when should an application be considered on behalf of someone who lacks testamentary capacity?
The following are examples or prevailing circumstances when a Statutory Will should be considered including situations where:-
- A gift in the current Will has adeemed or is likely to adeem and will not be part of the person’s estate due to its sale for instance to pay care fees;
- The person’s circumstances have changed dramatically since the last Will was made such as a marriage, co-habiting, significant increase or decrease in the size of their estate;
- Provision under an existing Will may not be in a beneficiary’s best interests such as a minor child or disabled beneficiary where it could better protected within a trust;
- The person’s tax liability on death could be reduced with better planning. Indeed in IRC v Duke of Westminster (1936) – it is a person’s right “if he can, to arrange his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be;
- There are suspicions that a current Will may not be valid for instance due to lack of capacity or undue influence. These circumstances should be considered with caution. An application for a Statutory Will should not be made merely to examine the current Will’s validity but it could be in a person’s best interest to avoid conflict and upset regarding his estate;
- There is no Will in place and there is a person or persons who might reasonably be expected to be provided for who do not come within the intestacy provisions.
If any of the above scenarios exist or there is uncertainty, advice should be sought from a lawyer experienced in advising on Statutory Will applications.
Making a Statutory Will application
Although the court’s permission is technically required to submit a Statutory Will application (s50 MCA 2005), there are many exceptions to the general rule which will cover the majority of interested applicants.
The application must contain full details of the person’s personal (including detailed medical evidence and evidence of lacking testamentary capacity) and financial circumstances as detailed in the relevant practice direction to the rules. The application also needs to demonstrate why it is in the person’s best interest to do a Statutory Will. Evidence of the person’s past and present wishes and feelings, beliefs and values should also be included where possible.
Notice of the application needs to be served on all persons materially affected by it and anyone holding confidential records such as solicitors holding the current Will.
Once the court has received the application generally it issues it back to the applicant together with directions. These generally require formal service or notification on the persons recited as respondents or to be notified. In addition, the court will direct the Official Solicitor to be served and invited to act as Litigation Friend for the person. Straightforward applications may proceed entirely on the paperwork however complicated or contested applications may require a hearing.
Generally, a straightforward application for a Statutory Will will take approximately five months but could be longer if complicated or contested. If the person’s life expectancy is limited it is possible to expedite the application if medical evidence of the limited life expectancy is provided to the court.
What must the court take into account?
Prior to the MCA 2005, the court’s objective when deciding on a statutory will was to consider what the incapacitated person would have done (Re D(J) 1982). However, following the MCA 2005, the case of Re P (2009) Lewison J (at the time) stated that under the MCA 2005, “the overarching principle is that any decision made on behalf of P must be in in P’s best interest. This is not necessarily the same thing as inquiring what P would have decided if he or she had capacity”.
If the court approves the Statutory Will it makes an order for the applicant to execute it. The original is then sent to the court for sealing.
Costs of a Statutory Will application
A Statutory Will application concerns the person’s property and affairs where r156 of the Court of Protection rules apply such that where “proceedings [that] concern P’s property and affairs the general rule is that the costs of the proceedings … shall be paid by P or charged to his estate”. The court can depart from the general rule if a party has acted unreasonably.
Due to the costs involved in a Statutory Will application, even where there appears a compelling reason to apply for a Statutory Will, if the estate would be significantly exhausted in costs, this would invite the court and official solicitor’s criticism and may risk a costs order against the applicant.
Where a person lacks capacity to make a Will, it may be prudent to consider whether to make an application to the court of protection for a Statutory Will for them, where it is in their best interest to do so.
For further information and advice please contact Ann-Marie Aston on 0121 733 8000 or via email at [email protected]