This week the Association of Lifetime Lawyers (Formerly Solicitors for the Elderly) are running their annual campaign ‘Update Your Will Week’. This campaign is one we are proud to support as it emphasises why wills are such important documents to create.
In this article, Alexandra Milson, Solicitor in our Court of Protection department looks at some frequently asked questions around statutory wills, including when statutory wills would be needed.
What is a ‘statutory will’?
A statutory will is a will authorised by the Court of Protection to be signed on behalf of an individual who has been deemed to lack testamentary capacity.
What is ‘testamentary capacity’?
Testamentary capacity is a legal term used to describe a person’s mental ability to make a will. The test of capacity is based on case law and requires the person to:
- Understand the nature of making a will and its effects
- Understand the extent of the property of which they are disposing
- Be able to comprehend and appreciate the claims to which they ought to give effect
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will
A person may have lost, or never had, testamentary capacity due to a learning difficulty, illness or injury. Capacity can fluctuate and the level of capacity required may change depending on a person’s individual circumstances and the complexity of their situation.
It is important to note that an attorney acting under an enduring or lasting power of attorney or a deputy appointed under an order of the Court of Protection does not have authority to make a will.
When would a statutory will be needed?
There are various reasons why a statutory will might be needed. Below are four examples of circumstances where it is likely a statutory will would be required:
1. The person has not made a valid will already
Where there is not already a valid will, an estate would be dealt with under the intestacy rules set out in legislation (governing England and Wales). You can read more about validity of wills here, and intestacy rules here.
If the person has not made a valid will and there are no known living relatives, it can be difficult to ascertain where their estate would be distributed. In such cases, the court would likely consider if that person expressed a wish for certain friends or charities to inherit, and it may be considered to be in their best interests to create a statutory will to codify these wishes.
2. There has been a change to the estate
If the person has had a loss or gain in their estate, it might be useful to update or make a new will to reflect this change. For example, the person may have received inheritance or a compensation award and it may be in the person’s best interests to have a will made on their behalf to deal with those assets.
3. Tax
There may be circumstances where it is deemed to be in the person’s best interests to create a will for tax planning purposes, in order to mitigate the tax payable on that person’s death.
4. Significant changes in circumstances
There may be circumstances where the person’s wishes and feelings around who they would like to inherit change. For example, the beneficiaries appointed under a will have passed away, or their relationship with the person has changed. If there is no will, but the intestacy provisions mean that the beneficiaries would be people whom the person would likely not want to inherit.
How is a statutory will made?
An application to the Court of Protection would be required. The court would consider any previous wills made by the person alongside their wishes and feelings. The court has the ability to decide how much weight should be given to any previous or current will made by the person.
This means that, although the court does not have the power to revoke a will, they can decide to not apply any weight to an existing will. For example, the court may choose to apply no weight to a will if it was proven to have been made at a time when the person lacked capacity to make it.
The court will carefully consider the application before them and encourages the involvement of the person, taking their thoughts and feelings into consideration throughout the process. If the court deems that it would be in the person’s best interests to authorise the creation of a statutory will, the document would be authorised to be signed on behalf of the person and it then would become a valid legal document.
How can Morr & Co help?
If you have any questions or would like any further information on the content of this article, please do not hesitate to contact Morr & Co’s Court of Protection team, who will be happy to help.
Contact us today on 01737 854 500 or email [email protected] to make an appointment to find out more.