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.
The purpose of a statutory will is to replicate as much as possible what the person would have wanted had they possessed the capacity to create a will themselves, considering all relevant circumstances. By securing a statutory will, the individual’s wishes can be preserved and their estate distributed accordingly.
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.
It is undertaken to safeguard the interests of P and ensure that their estate is distributed according to their best interests, as closely as possible to their hypothetical wishes.
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 should aim to align with what the individual would likely have wanted if they were capable of creating a will independently. 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.