It’s important for everyone to have a will. But what happens when someone is unable to make a will themselves? To be able to make a will, you need to have what’s known as ‘testamentary capacity’ to do so. In layman’s terms, the ability to understand what it is you are signing, and the impact it has in the future.
For those who do not have testamentary capacity, the Court of Protection is able to grant permission for what’s known as a ‘statutory will’ to be made. In this blog, we will define what a statutory will is, shedding light on who can make one, when it is made, and why it may be necessary.
What is a statutory will and why is it important?
A statutory will is a will created on behalf of a person who lacks testamentary capacity, approved by the Court of Protection. The Court appoints someone, often the Official Solicitor, to represent the individual and draft their will accordingly.
A statutory will may be necessary if a person has never made a will and now lacks the testamentary capacity to do so or has an outdated will.
Who can make a statutory will?
Statutory will applications are frequently initiated by the attorney or deputy acting on behalf of P (the person).
It is essential to note that the mere existence of an attorney or deputy does not automatically imply a lack of testamentary capacity. Before contemplating a statutory will, it is crucial to establish that the person genuinely lacks the necessary capacity. The Court of Protection expects the applicant to thoroughly evaluate all relevant aspects before pursuing a statutory will.
When is a statutory will made and why?
A statutory will is typically sought when an individual lacks testamentary capacity and either does not have a will or requires amendments to an existing will. In such cases, applying to the Court of Protection for a statutory will becomes the only viable option.
The primary purpose of a statutory will is to ensure that the individual’s assets are distributed in line with what the court determines to be in their best interests, given their past wishes, current situation, and the interests of those connected to them.
Essential considerations for a statutory will
When drafting a statutory will, several key factors should be taken into account.
Firstly, the applicant must establish the individual’s lack of testamentary capacity. This involves evaluating their ability to understand and make decisions regarding the distribution of their estate.
Secondly, the proposed statutory will is often seen as a protective measure to ensure fairness in cases where existing arrangements may no longer reflect what the person would want if they had mental capacity. This necessitates a comprehensive assessment of their personal circumstances, including relationships, financial situation, obligations as well as any will they may have already made.
Having a known will to work to is invaluable when making a statutory will, as it outlines the wishes of P for their estate at a certain point in time. This can then be considered with the circumstances of the individual now in order to ensure that their wishes are kept as closely as possible to what was outlined.
Even if a will cannot be found in the home or with a particular known solicitor of P, there may still be a valid will for P. A Certainty Will Search is able to search the records of over 10 million registered wills, as well as searching unregistered wills with firms in geographically targeted areas so deputies, attorneys, the Official Solicitor, family and friends can have certainty on whether a will has been made and lodged with a firm in the UK.
To find out more about searching for a will for someone who lacks testamentary capacity and requires a statutory will, click here.