Statutory Will Application
If a person has lost the mental capacity to make or amend a Will for themselves, it may be possible to apply to the Court of Protection for permission to make a Will for them. There must be a good reason to make an application and the reasons for making/amending a Will by these means must be justified to the Court of Protection.
Some reasons to pursue a Statutory Will application may include:
- There is no Will currently and no known family for the incapacitated person;
- The current Will is outdated (for example, beneficiaries have predeceased the incapacitated person or their financial or other circumstances have changed considerably);
- To provide for adequate inheritance tax planning;
- To recognise a greater input of time and care of someone not otherwise recognised in an existing Will;
- To correct situations of financial abuse (e.g to alter inheritance for a child who has “helped himself” to the person’s funds).
Statutory Will Application Process and Costs
Statutory Will Applications can be protracted and complex, depending on the circumstances. There is an obligation to identify, trace and notify any and all potential beneficiaries or parties who may be affected by the Statutory Will application (whether adversely or otherwise). These parties then have the opportunity to object to the proposed Will in whole or in part.
In addition, the Court of Protection usually involves the “Official Solicitor” with these applications to act as a third party litigation friend for the person who is deemed to lack capacity to make the Will (referred to as “P”). The fees of the Official Solicitor are payable by P in addition to any legal fees incurred by the person applying on P’s behalf.
The consequence is that a Statutory Will application may result in legal fees on many sides if there are opposing views and objections. These fees are usually payable out of the estate of P and so, the size of his/her estate and the reasons for making the application must be strongly considered before determining whether or not an application would be in P’s best interests.
After negotiations are concluded between parties, the Court makes a determination regarding the proposed draft Will which has been agreed and an Order may be made to allow the applicant (usually a Court appointed Deputy or Attorney) to sign the Will on behalf of P.
Talk to Tollers
If you would like advice or assistance to make a Statutory Will application and whether this would be worthwhile, please do not hesitate to speak with a member of our EVCU team.