If someone has lost the ability to make their own decisions, it may be possible to have a Will made on their behalf. This is known as a statutory Will. 

It is sometimes the case that an individual may no longer be able to manage their own affairs and they have either failed to put a Will in place or the Will they have is no longer right for their circumstances. For example, their chosen executors or beneficiaries may have themselves died. 

In this case, someone close to the individual can make an application to the Court of Protection (CoP) to put a statutory Will in place. This is a Will made under the terms of the Mental Capacity Act 2005.  

When is a statutory Will needed? 

If someone no longer understands why they need a Will, what effect making a Will might have and the extent of their estate, they do not have the mental capacity to make a Will themselves. However, those close to them may have an understanding of what the individual’s wishes were. Making a statutory Will can ensure that these wishes can be carried out when the time comes.  

How do you make a statutory Will for someone? 

A statutory Will is made by sending an application to the Court of Protection together with a range of supporting evidence. If the court agrees to the proposed Will, then you will need to sign two copies of the Will in the presence of witnesses, who will also need to sign. These are then sent to the court to be sealed. The court will then return them and they can be kept until needed.  

The process is not always straightforward and you are advised to speak to an experienced Wills solicitor who will be able to advise you on issues such as mental capacity and what the court will take into account when deciding whether to make a statutory Will. They will also ensure that all of the necessary information is included with the application. 

If you are an attorney under a Lasting Power of Attorney or you have been appointed as the individual’s deputy or you might be entitled to a share of their estate, you can apply to the Court of Protection, asking them to make a Will. 

If a Will is needed urgently, an emergency application can be made. 

Information needed by the Court of Protection 

The CoP will need a wide range of information from the person who is applying, including an assessment of the individual’s mental capacity by a doctor or other medical professional. 

Details that the court will require include: 

  • A draft of the statutory Will that you are asking the court to make 
  • Details of the extent of the individual’s estate and their income and expenses 
  • Details of their family and anyone else who might have an interest in their estate 
  • The reasons why the beneficiaries named in the proposed Will should inherit 
  • Copies of any relevant documents, including an Enduring Power of Attorney or Lasting Power of Attorney, if there is one, and any previous Wills 
  • The consent of anyone named as an executor in the proposed new Will 

Anyone who currently stands to benefit from the individual’s estate, either through the Rules of Intestacy or because they are named in an existing Will is notified of the application and will have the opportunity to object. 

What does the Court of Protection take into account when making a statutory Will? 

The CoP will always prioritise what it believes to be in the individual’s best interests. Those who know them can make written statements setting out what wishes have been expressed to them. The individual’s priorities and beliefs will also be taken into account.  

The court will consider the opinion of a range of people, including close relatives, those who have been caring for the individual and any representative, such as an attorney or deputy. It will also look at whether it is likely that the individual will be able to make a Will in the future, if their mental abilities improve. 

In addition, it will take into account any other factors it feels are relevant, including decisions the individual has made in the past.  

 

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If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com