What are they and when might you need to make one?
In an ideal world everyone would have a Will in place, as it is the only way of ensuring that your wishes are known.
Without a Will, assets are distributed in accordance with the rules of intestacy rules which may not reflect your wishes. Significant events in life can change your intentions so it is therefore important to keep your Will up-to-date. Whether you are making a Will or updating one, you must have the necessary testamentary capacity to do so.
However, just because someone has lost capacity doesn’t mean that they can no longer have a Will in place to deal with their estate upon death.
When a person has lost the capacity to make a Will and a Will is required or needs updating, an application can be made to the Court of Protection to authorise it’s execution on behalf of the person lacking capacity (‘Protected Party’).
What are statutory Wills?
A statutory Will is a Will prepared and executed on behalf of a Protected Party and approved by the Court of Protection.
An Attorney or a Deputy cannot execute a Will without the Court of Protection and any Will done without approval would be invalid.
Often the rules of intestacy can be sufficient but a statutory will can be particularly important in circumstances such as where there is an absent father or the Protected Party has other people that they would like to benefit under their estate.
Why are they necessary?
A statutory Will may be considered necessary in the following circumstances;
- the person who lacks capacity has never made a Will before and the rules of intestacy are not suitable.
- an existing Will is no longer appropriate.
How do you make an application?
The process begins with obtaining a testamentary capacity assessment for the Protected Party in the form of a COP3. This is required as part of the application to the Court of Protection.
It is important that any proposed Will reflects the wishes of the Protected Party. These could be obtained by looking at previous Wills, talking to the Protected Party (if possible) and also talking to close family members. Once this has been done an application is completed and sent to the Court of Protection.
The application is likely to require the various supporting information:
- A copy of the proposed Will
- Details of why the proposed Will is in the interests of the Protected Party
- Family Tree
- Consent from the proposed Executors named in the proposed Will
- Copies of any existing Wills
- Details of the estate of the Protected Party, including income and expenditure
- Details of any inheritance tax that may be due
- Overview of the health of the Protected Party, including life expectancy
An urgent application may be made if a Will is required urgently due to the health of the Protected Party.
The Official Solicitor will usually be appointed to act as Litigation Friend for the Protected Party so that there is an independent person involved.
As part of the process, anyone who is materially or adversely affected by the proposed Will is served with a copy of the application and has the opportunity to be joined as a party to proceedings. This would include any beneficiaries under a previous Will as well as the proposed Will. If there is no Will, intestate beneficiaries will need to be served.
All parties involved work together to finalise a Will to send to the Court of Protection for approval. It is usually a paper exercise unless there is a disagreement.
At Osborne Morris & Morgan our team of Court of Protection experts are on hand to advise and support you through this process, making it a stress free as possible.
To discuss making a statutory Will get in touch for a free initial telephone conversation with our expert Court of Protection team on 01525 378177 or complete our contact form below.
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