The learning curve - Top 5 tips for obtaining a statutory will

Over the past year, our Court of Protection team has dealt with a number of applications to Court for statutory wills for our clients. Every client is an individual with very specific personal circumstances so, although the application process is the same each time, there will always be aspects of the application that are peculiar to that client. This certainly makes life interesting!

Every time you complete an application for a statutory will, you learn more about the issues and pitfalls that can be encountered when dealing with these types of wills. These are our top 5 tips for navigating the learning curve and securing a completed statutory will:

1. Do not underestimate the time or the costs involved

Statutory will applications are very detailed and require a great deal of information to be brought together from various sources; it can take several months to prepare the application and arrange the assessment of capacity and three to six months to go through the Court process.

The costs for an application can increase rapidly if the matter becomes contentious. Make sure the person who is applying for the will is aware of the costs before work commences.

2. Choose your expert carefully

You will need to include in your application an assessment of capacity to make a will. This is not the same as the assessment for whether someone needs a Deputy to manage their affairs for them – it is a specific assessment of testamentary capacity.

GPs are increasingly reluctant or unable to complete this type of assessment. Consider instructing a capacity expert – this might be slightly more expensive but could save considerable time and costs in the long run.

3. What is in the person’s best interests?

This is the issue that both the Court and the Official Solicitor will consider. The Official Solicitor is likely to be invited by the Court to act on behalf of the person for whom the statutory will is being made and there will be a costs associated with this. Think ahead and consider this when drafting your application. If the person that the will is for could make the will themselves, what would they do; who would they benefit; who would they leave out?

4. What year is it?

As the application can take several months, it is quite possible that you will start the matter in one year and finish it in another! Check the date on the draft will that is approved by the Court – you have to sign an exact copy of what is approved so make sure the will has the right year on it before you sign it. 

5. Record and file everything

Solicitors’ costs for dealing with the application will be assessed by the Court, so ensure that everyone who has worked on the file has made notes of their work and put them on the file – good administration is crucial!