What is a Statutory Will?
Statutory Wills are Last Will and testaments authorised by the Court of Protection under the Mental Capacity Act 2005. Such a Will can only be made when someone lacks the mental capacity to make a normal Last Will for himself or herself. A Statutory Will is every bit as effective as if the person had full mental capacity and made the Will themselves. Call us on 01323 406299 if you need professional advice.
The person must lack the capacity specifically to make a Will and therefore the test is one of testamentary capacity, quite different from a more general capacity test.
The mental capacity test broadly consists of four parts:
1) Is the person aware of the true nature and extent of their assets?
2) Are they aware of the range of people they should consider benefiting in their Will?
3) Do they understand that they are making a Will and what that means?
4) Are they labouring under a misapprehension, perhaps brought about by malicious reports or mental delusions, about any of the potential beneficiaries’ circumstances? Perhaps, wrongly, considering that they do not deserve to benefit.
As an example, a multi millionaire might not remember exactly how many houses he had, and that might be OK. However, if he was not aware that he was married (or divorced) then that would probably mean he would need a Statutory Will even if he were otherwise able to carry on relatively normally.
It is possible for a person under the Court of Protection to be mentally incapable of managing their own financial affairs but to have the requisite testamentary capacity to make a Will themselves. If this is the case then there is no need for a Statutory Will to be applied for but care must be taken that the correct test of capacity is satisfied.
How is a Statutory Will made?
An application is made to the Court of Protection for a Statutory Will to be made on a person’s behalf. The Court of Protection must agree that there are grounds for changing the existing Last Will (if there is one). The Court of Protection is happier to make a Statutory Will when the person has never made a Last Will or there has been a major change in circumstances.
How will the Court of Protection decide about a Statutory Will?
Anything done under the Mental Capacity Act 2005 must be in the person’s best interests, so that when the Court is considering making a Statutory Will, they must consider:-
• The person’s past and present wishes and feelings and, in particular, any relevant document made by the person when he/she had full mental capacity. However, the person’s wishes are not the only consideration.
• The Court of Protection’s approach is to focus on the person’s best interests. The Mental Capacity Act, requires the decision maker to consider the person’s present wishes and feelings and specifically requires that they take a number of steps before reaching a decision including:-
• Encouraging the person to contribute to the decision making process.
• Consider their past and present feelings and wishes.
• Consider the views of relevant third parties as to the best interests.
The decision-maker must then make a decision in the person’s best interests.
The importance of the person’s wishes and feelings will be specific to the circumstances (the making of the Statutory Will) and facts.
How to apply for a Statutory Will?
Contact us on 01323 406 299 for advice as to how to apply for a Statutory Will, or get very familiar with the Court of Protection Rules 2007!