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Statutory Wills

26 May 2020

Let’s make choices, not take chances; and for those that do not have the necessary mental capacity to deal with their own affairs, it is hugely important that we put in place safeguards to ensure their affairs are in order should the worst happen.

Where a vulnerable individual lacks the mental capacity to make a Will the Court of Protection may authorise a Statutory Will to be executed on their behalf. Whilst it is possible for some decisions to be made through a Lasting Power of Attorney, other decisions, such as putting in place a Statutory Will, must be made by the Courts.

The Mental Capacity Act 2005 sets out the current statutory framework for executing Statutory Wills in the Court of Protection.

Before an application for a Statutory Will is made to the Court of Protection, it is important to establish whether the person has testamentary capacity to do so; that is, the capacity to make a valid Will.
The test for testamentary capacity is set out in the case of Banks v Goodfellow (1870) which states that an individual will have testamentary capacity if they are capable of understanding:

  1. the nature and effect of making a Will;
  2. the extent of his or her estate; and
  3. the claims of those who might expect to benefit from their Will.

If an individual who lacks capacity requires a Will an application to the Court of Protection may be required if they do not have the testamentary capacity to put in place a Will.

To make a Statutory Will, a number of application forms and statements supporting the terms of the Will need to be made. The application is then made to the Court of Protection who will make a decision as to whether the Will is appropriate.

If a Statutory Will is not made for an individual who lacks capacity and no previous valid Will was in place, then their estate will pass under the Intestacy Rules and the law will govern to whom their estate will pass. This may mean that as an Attorney or a Deputy you may end up playing at the intestacy roulette wheel – meaning that certain people may, or may not, benefit from a the incapacitated individual’s estate.

Therefore, making a Will (or a Statutory Will, if appropriate to the circumstances) is the best way to combat any unintended consequences of the Intestacy Rules.

For more information on any of the above, or how we can help you, please contact Tom Bridge on 0191 232 8345.