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Statutory Wills

What is a Statutory Will?

A Statutory Will is the name given to a Will that the Court of Protection can put in place for a person who’s lost the capacity to make a Will themselves. One may also be required if the person has a Will but it is out of date or there’s been a change in their circumstances.

In each case, an application for a statutory Will to be put in place must be made to the Court of Protection.

Who can apply for a Statutory Will?

An application is normally made by the person authorised to act for the person lacking mental capacity. This is often a Court of Protection Deputy or someone with Power of Attorney.

What’s involved in making a Statutory Will?

Applying for a Statutory Will can be a complicated and time consuming. This is why people usually appoint an experienced Court of Protection solicitor to guide them through the process.

A representative of the person lacking capacity will need to make an application through the Court of Protection. This involves completing a number of forms and may involve a hearing in the court.

Among other requirements, a copy of the person’s existing Will, a draft of the proposed Will, details of their family, assets and income, as well as medical evidence of their incapacity has to be provided to the court, together with any other evidence the court requires.

The Official Solicitor will generally be appointed to represent the person’s interests. Anyone who would be potentially affected by the application (perhaps a beneficiary who would lose out, for example) will be a party to the court proceedings.

The statutory Will application process:

  1. The Attorney, Deputy or solicitor will need to complete a number of forms, including a witness statement and assessment of capacity form;
  2. The application is sent to the Court of Protection;
  3. Family members or interested parties will be informed and consulted about the contents of the Will;
  4. There may be a hearing, if the Court of Protection decide that one is required;
  5. If the application is approved the Will is signed and sealed by the Court of Protection.

This process can be complicated and stressful, and family members can disagree. If that happens the Court of Protection is likely to involve The Official Solicitor who will step in to represent the interests of the incapacitated person.

Why use Clarke Willmott for Statutory Will application?

The process of making a Statutory Will can be complex, but we can help you.

We have many years in-depth experience of such applications, particularly as two of our partners are professional Deputies and deal with the Court of Protection on a very regular basis. In short, we are specialists in this area, and we know what we’re doing, enabling us to deal with applications efficiently and in the fastest time possible. We aim to make the process as smooth and as stress free as we can, managing the expectations of family members throughout.

Don’t worry, if the application is urgent, we can help get it fast tracked through the Court of Protection.

Contact us for a free and confidential initial consultation. We have specialist Court of Protection lawyers in London, Manchester, Bristol, Cardiff, Birmingham, Southampton and Taunton. Call us now on 0800 652 8025 or contact us online.

Frequently asked questions Statutory Wills

What is testamentary capacity?

‘Testamentary capacity’ means a person’s legal and mental ability to make or change their Will.

If someone has testamentary capacity, that means they have the mental ability to make their own decisions about the gifts and arrangements in their Will.

If they did not have testamentary capacity when their Will was written, because they were incapable of making informed decisions, their Will is invalid.

Does someone with dementia need a statutory Will?

There are different kinds, and degrees, of dementia. Just because someone has been diagnosed with dementia, it doesn’t automatically mean they are incapable of making decisions about who should benefit from their estate in future. They may still have testamentary capacity.

However, they should have professional support to make their Will, to make sure it is legal and valid as well as being a true representation of their wishes.

How do you know whether someone has the capacity to make a Will?

There is a specific test which is applied to assess whether someone has testamentary capacity to make a Will. The test (in broad terms) looks at whether the individual understands what making a Will means and its effects, whether they’re aware of the extent of the assets that they own and of which family members and friends might expect to benefit from their estate. Where capacity is doubtful, this test should be applied by a medical professional who should be given details of the test.

When is a Statutory Will necessary?

A Statutory Will may be necessary if a person has never made a Will and now lacks the testamentary capacity to do so or has an outdated Will

If the person does not have a Will, the rules of intestacy will apply on their death; these rules set out how their assets should be divided. The intestacy rules are sufficient for many people.

For example, Arthur does not have capacity to make a Will and has never made one. He is a widower with three adult children. On Arthur’s death the intestacy rules mean that his assets would be divided equally between his children. In these circumstances it’s unlikely that Arthur would need a Statutory Will.

However, if, for example, Arthur had no blood relatives, but had two step-children that he had always treated as his own, on his death his assets would potentially pass to the Crown. In those circumstances it may be appropriate to apply for a Statutory Will for Arthur so that his step-children could benefit from the estate.

In other cases, an existing Will may be very out of date (perhaps all the beneficiaries have died) so an application for a Statutory Will would be appropriate. Sometimes the court will also sanction a Statutory Will for tax planning purposes

How long does it take to obtain a Statutory Will?

A normal uncontested application (where there’s no objection to the proposed Will) would normally take about four to six months depending on the court’s workload. Urgent applications can be made if there’s a good reason for them, such as the person lacking capacity only having a short life expectancy.A normal uncontested application (where there’s no objection to the proposed Will) would normally take about four to six months depending on the court’s workload. Urgent applications can be made if there’s a good reason for them, such as the person lacking capacity only having a short life expectancy.

How much does a Statutory Will cost?

There is a court fee payable of £365 and an additional fee will be charged for medical evidence. If we are appointed to act our fees would be determined by the court; in a straightforward application we would expect our fees to be somewhere in the range of £3000 to £4000 (exclusive of VAT) which would be payable from the assets of the person who lacks capacity. We would give you full details at the outset.

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