Statutory Will - speculating on the wishes of someone who lacks capacity and their best interests

A recent case concerning a Statutory Will has highlighted the difficulties of trying to speculate on the wishes of someone who lacks capacity and what is in their best interests.

What is a Statutory Will?

If a person is over the age of 18 and lacks the necessary 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. There is a general principle under the Mental Capacity Act 2005 that any decision must be made in the best interests of the person affected by the decision. If a person does not have a will in place, then on death their estate passes in accordance with the Intestacy Rules, which sets out the order of priority for relatives to inherit.

Who is the Official Solicitor?

When an application for a Statutory Will is made, the Court will usually invite the Official Solicitor to act on behalf of the person who lacks capacity. This ensures that someone is acting in that person’s best interests and that the application process is conducted fairly. The Official Solicitor considers the person’s past and present wishes and feelings (if they have been able to indicate any) as well as any beliefs and values that would influence their decision and any other factors that the person would consider if they were able.

The Case

In the case of Re LM [2015] EWCOP91, the person who lacked capacity, LM, was awarded over £3m by the Criminal Injuries Compensation Authority to compensate her for injuries caused by an assault and provide care throughout her life. LM was adopted so under the Intestacy Rules, her adoptive parents would have inherited her entire estate.

An application for a Statutory Will was made to appoint executors to administer the estate and then divide it between various family members, including LM’s adoptive parents. The Official Solicitor agreed that a Statutory Will should be made for LM, but argued that 20% of her estate should be left to relevant charities. In contrast, LM’s family argued that this should only be 5%.

LM was asked about whom she would like to leave her things (i.e. her possessions) to and she was able to indicate her family members, but she had no understanding of the size of her estate or what impact the distribution of her estate would have on her death.

The court decided that ‘it would be in LM best interests for the majority of her estate to be divided between her family in recognition for their love and devotion.’ However, it also said that ‘LM would wish to gift a proportion of her estate for charitable purposes in recognition of the considerable help that she has received from the community.’ The court felt this reflected LM’s bests interests and was a fair balance between her family and charity.

This case shows several of the factors that have to be considered when applying for a Statutory Will and the differing views of those who represent a person who lacks capacity. Making a will is a highly personal matter and both the court and the Official Solicitor have to determine what would be in the best interests of the person lacking capacity, as well as what is fair to those who would benefit from the estate.

Below is a summary of one of the Statutory Wills we have recently prepared for a client.

Case study – Yvonne

Yvonne* is a young adult who suffered severe brain damage at birth. A case was brought against the health authority for damages and an award was made of £2.5 million, including annual payments to be made for the rest of her life. Yvonne’s mother continues to be her primary carer and her father had had no contact with her since she was born.

Once she reached the age of 18, Yvonne’s Deputy applied to the Court of Protection for a Statutory Will to be signed on her behalf. The proposed will stated that on her death, the majority of Yvonne’s estate would pass to her mother, who has devoted herself to Yvonne’s care and the balance to other close family members. An application was also made to exclude her father from the will. We were unable to trace him, and the application was successful.

The Official Solicitor was asked to act for Yvonne in the matter and agreed in principle to the proposed will but also suggested that a proportion of her estate should pass to the charitable school which Yvonne attends, as an acknowledgement of the benefit she had received from being there. The Official Solicitor also suggested small legacies (gifts of money) for two of Yvonne’s relatives. When told about these, Yvonne was able to communicate her approval and the relevant clauses were included in the will, which was then approved by the Court.