Sharon Auton, who leads the Thompson Smith and Puxon Dispute Resolution team, answers the question “What is a Statutory Will?” and also discusses when and why one might be necessary, and how to apply for one if needed.
The current estimate is that a staggering 40% of the adult population in this country do not have a Will. If you don’t have a valid Will in place at the time of your death then the Rules of Intestacy will determine how your estate is divided amongst your heirs – see here. It is also possible that someone, who relied on you for support whilst you were alive, will make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
What is a Statutory Will?
If you do not have the capacity to make a Will for yourself, the Court of Protection, under the Mental Capacity Act 2005, can execute a Statutory Will on your behalf. If you lack capacity an application to the Court is the only means of obtaining a Will.
Who can make an application to the Court of Protection for a Statutory Will?
The following people are allowed to make an application for a Statutory Will:
- Your Deputy (officially appointed by the Court of Protection)
- The Office of the Public Guardian
- The Official Solicitor
- The donee of a registered lasting power of attorney or enduring power of attorney, or
- A person who may become entitled to your property under either a Will or intestacy
Any other person would first need to apply to the Court for permission to make the application. Copious documentation usually accompanies any such application.
What the Court considers when an application for a Statutory Will is made?
If you lack capacity, first and foremost, the Court considers what is in your best interests. If you have already made a Will the applicant needs to persuade the Court that there are grounds for departing from wishes stated in that Will. The Court is most likely to execute a Statutory Will if you have never executed a Will or if there has been a significant change in your circumstances.
Where possible, the Court takes into account your past and present wishes and feelings, your beliefs and values and other factors you might consider if you had capacity. The Court will also try to find out about the views of anyone currently engaged in caring for you, and also anyone acting as your attorney under a lasting power of attorney or as your Deputy.
What happens next?
The Applicant will
- serve the application on any existing beneficiaries, whether they exist under an existing Will, or under the rules of intestacy
- take steps to locate family member details if unknown
If there is opposition the Court will
- possibly invite the Official Solicitor or some other person to act as your Litigation Friend if someone opposes the application
- give both parties the opportunity to provide evidence supporting their positions. At trial the Court considers the evidence of both parties and determines whether to execute the Statutory Will, and in what form
This process takes time and often highly contentious, stressful and expensive. The Court encourages parties to reach a resolution, possibly by way of mediation. The Association of Contentious Trust and Probate Solicitors (ACTAPS) also actively encourages this in its code of conduct.
The Law Commission is currently consulting on Wills; You can find more details about the consultation, which is open until 10 November 2017, here. This consultation is long overdue. The current law is out of date and does not take sufficient account of the ageing population, changing family dynamics and a person’s capacity to make a Will. The Consultation is considering
- changing the test for capacity, to take into account the modern understanding of conditions like dementia, and
- providing statutory guidance for doctors and other professionals who assess whether a person has the required mental capacity to make a Will