Q. I have been told that a “Statutory Will” has been made by a relative of mine. I know that the relative concerned is very poorly and would not be able to understand anything or give instructions themselves, so I am wondering how a Will could have been made by them?
A. It is possible when a person lacks the mental capacity to make a Will for themselves for the Court of Protection to make a Will on their behalf, and this Will is called a Statutory Will. The Mental Capacity Act 2005 governs the process for making Statutory Wills and the procedures of the Court of Protection need to be followed if an application is to be made.
In order for a Statutory Will to be made an application has to be made to the Court of Protection, and the court needs to be persuaded that there are sufficient grounds to make a Statutory Will that either differs from the person’s current Will, or the Intestacy Rules that would otherwise come into effect on their death. It is more likely that the court will put a Statutory Will into effect when the person lacking capacity has never made a Will, or their circumstances have changed significantly. The court will also need to consider what is in the person lacking capacity’s best interests and will request as much information as possible from the person making the application. The court will also expect any beneficiary under an existing Will who might be materially or adversely affected by the new Statutory Will to be made a party to the proceedings.
If the court is satisfied on the various issues after a hearing has taken place it will grant the application for a Statutory Will which will then come into effect on the person’s death.
It is important for the application and procedures to be followed carefully and I would advise that you take appropriate legal advice if you are considering such an application.