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Most people know that making a will is a good idea, as it allows you to say how your estate should be dealt with when you pass away and makes dealing with your estate much easier for your loved ones. But what if someone lacks the mental capacity to make a will?
Applying to the Court of Protection to make a statutory will allows you to modify or create a will for someone who lacks mental capacity, providing certainty over the future of their estate and helping to avoid confusion and conflict between family members.
Our statutory wills solicitors have decades of experience helping clients apply to the Court of Protection on behalf of vulnerable people. We can provide clear, sensitive guidance to help you put in place a fair, legally-sound will for a vulnerable person.
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If a person is over 18 and lacks the mental capacity to make a will, then an application can be made to the Court of Protection for a statutory will to be made on their behalf.
The Mental Capacity Act 2005 allows the Court to authorise the creation of a will for someone who does not have capacity to make a will themselves. The person who made the application can then make a will for the vulnerable personand usually the Official Solicitor is appointed to represent them as an independent person.
A statutory will should reflect the best interests of the vulnerable person in whose name it is being made. The applicant and the Court will need to consider what the person would have put in their will if they were able to make it themselves, bearing in mind the vulnerable person’s values and the decisions they have made in the past.
A statutory will can cover all of the issues a standard will does, including what will happen to the vulnerable person’s home, their savings, investments and any other assets.
Without a statutory will, a person’s estate will be dealt with in accordance with their last will (which may be out of date) or, if there is no will, then the ‘intestacy rules’ will be followed. The intestacy rules require the deceased’s assets to be distributed to the next of kin in strict order, which may not be what the deceased would have wanted.
Making an application to the Court of Protection to create a statutory will can allow an out-of-date will to be modified or a new will to be created, helping to ensure a vulnerable person’s estate will be dealt with in the way they would have wished.
The right time to make a statutory will depends on the circumstances. Our team will be happy to advise you so you can be confident that you are taking the necessary steps at the appropriate time.
If a person does not have ‘testamantary capacity’ to makea Will then an application should be made to the Court of Protection. A person will not have capacity to make a Will if they cannot:
Typically, people will want to think about applying for a statutory will at the point where a loved one loses mental capacity, where a vulnerable young person is nearing the age of 18 or where there has been a significant change in a vulnerable person’s circumstances, such as if their spouse has passed away, they have received an inheritance or they have been awarded personal injury compensation.
While an application can only be finalized once the vulnerable person it relates to is over the age of 18, the preparation for an application can be started once a person turns 17. This is because it can take several months to collect the information required and prepare the application, then several more months for the application to be processed.
The application to create a statutory will is usually made by someone acting as a Court of Property Deputy for the person for whom the will is being made. However, if an adult made a Lasting Power of Attorney (LPA) before losing capacity and it has been regsitered, then their Attorney can make the application.
Other people can make an application for statutory wills, but may need the permission of the Court to do so.
Applications for a statutory will involve considerable thought and paperwork, with clear guidelines set out by the Court of Protection that must be followed to ensure a successful application. All of the information required by these guidelines must be included in the application, otherwise it could be rejected or delayed, resulting in additional cost, time and stress for you.
The information includes a family tree, financial information and a witness statement setting out the background about the incapacitated person, their medical condition, assets and needs, and how their estate would be distributed under the proposed will.
Our statutory wills solicitors can guide you through the entire application process, including filling out the relevant forms and ensuring you have all of the required supporting information. This can help to make applying for a statutory will much simpler, faster and easier .
As part of your application, you will need to submit the following to the Court of Protection:
An application form (COP1) – setting out the nature of the application, your details, the details of the vulnerable person and details of anyone who will need to be notified of the application e.g. relatives of the vulnerable person.
A witness statement (COP24) – allowing you to provide written evidence about the vulnerable person on whose behalf you are applying for a statutory will.
An information form (COP1C) – giving detailed information about the decisions you need to make for the vulnerable person about their will.
An assessment of capacity form (COP3) – with evidence from an approved medical professional about the capacity of the vulnerable person the application relates to.
The Court can accept the application “on the papers”, allowing you to move straight ahead with creating a statutory will, or alternatively there may be a hearing where the court believes there are issues to resolve before permission to create a statutory will can be granted. A hearing may be required if, for example, a relative of the vulnerable person opposes the application.
In either case, if the application is granted, the Court will normally appoint the Official Solicitor to advise and act for the incapacitated person in the creation of a statutory will. The person making the application works with the Official Solicitor to reach an agreed draft of the will, which is then approved by the Court.
The Official Solicitor will consider what the person would have wanted and who they would include in their will if they were able to voice their wishes.
If the Court of Protection decides a hearing is required before a decision can be made about creating a statutory will, the various parties involved will be invited to present evidence for their position and the Court will then decide whether to grant the application. Court of Protection hearings usually take place in private, but can take place in public if the Court feels this is appropriate.
We strongly recommend having the support of a solicitor with strong experience in Court of Protection cases if a hearing is required for your application. This helps to ensure your case is prepared and presented in the most effective way and that you have the best chance of having your application granted.
The general rule is that the costs of the proceedings (including the other parties costs, if any) are paid from the applicants estate.
We secured a statutory will for a young adult, Janine, who suffered a brain injury at birth and is estranged from her father. Without a statutory will, Janine’s estate would potentially have been distributed equally between her parents.
Significant efforts were made to trace the father to inform him about the application, but he could not be located. The will approved by the Court left a sum of money to Janine’s school, which is a charity, and small sums of money to her grandmother and aunt, with the majority of the estate passing to Janine’s mother, who has looked after Janine throughout her life.
We have also secured a statutory will for a young adult, Eric, who suffered a serious illness in infancy, which was not properly treated, leaving him with brain damage. His parents’ relationship ended acrimoniously and Eric has not seen his father for over 10 years. The proposed statutory will excluded Eric’s father.
As part of the application to the Court, a request was made that the father not be informed about the application, due to the difficulties between his parents, The Official Solicitor’s position was that this was unfair, so the father was informed. However, as no objections to the will were received, the Court approved a statutory will, leaving the entire estate to Eric’s mother.
We put in place a statutory will for James, a 67-year old man who was born with learning difficulties. In 2006 James was involved in a car accident in which he suffered serious spinal injuries and he received an award of damages. The will appointed professional Executors to administer the estate because James’ siblings did not feel able to take on the role. James’ estate will now be divided between his closest family members who see him regularly.
Our advice is to always get professional help with a statutory will to ensure all the essential details are taken care of and to keep the application process as smooth and stress-free as possible.
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