What is a Statutory Will?
Where someone lacks the mental capacity to execute a Will for themselves, it is possible for the Court of Protection to execute a Statutory Will on their behalf. The Mental Capacity Act 2005 sets out the current statutory scheme for the execution of such Wills.
A Will that the Court makes for the individual who lacks capacity has the same effect as if that person had had the capacity to make a valid Will and had executed it in the manner required by the Wills Act 1837.
The person must lack the capacity specifically to make a Will and therefore the test is one of testamentary capacity, rather than any more general capacity test. It is therefore possible for a patient of the Court of Protection to be mentally incapable of managing their own financial affairs but to have the requisite testamentary capacity to make a Will themselves. If this is the case, then there is no need for a Statutory Will to be applied for but care must be taken that the correct test of capacity is satisfied.
What is the test for testamentary capacity?
Under Banks v Goodfellow (1870) the test for testamentary capacity is as follows :-
The person making the will ("the testator") must be capable of understanding:-
- The nature and effect of making a will.
- The extent of his or her estate.
- The claims of those who might expect to benefit from the testator's Will (both those included in the Will and those excluded ), and
- The testator should not have a mental illness that influences the testator to make bequests in the Will that he or she would not otherwise have included.
How is a Statutory Will made?
An application must be made to the Court of Protection in order for a Statutory Will to be made on a person's behalf. It is necessary to persuade the Court of Protection that there are grounds for departing from his/her existing testamentary arrangements. The Court of Protection is most likely to execute a Statutory Will if the patient has never executed a Will or there has been a significant change in his/her circumstances. The Court of Protection can make a Will on behalf of an individual domiciled outside England and Wales, provided the Will relates to immovable property inside England and Wales.
On what basis will the Court of Protection make a decision?
Anything done under the Mental Capacity Act 2005 must be in the patient's best interests, so that when the Court is considering the execution of a Will, they must consider as far as possible the following :-
- The patient's past and present wishes and feelings, and in particular, any relevant written statement made by the patient when he had capacity. However, the patient's wishes are not determinative.
- The beliefs and values that would be likely to influence his decision if he had
Capacity and other factors he would be likely to consider if he were able to do so.
Prior to the Mental Capacity Act 2005, the Court applied a "substituted judgment test" so that they would assess what the patient would have done if he had had a brief lucid interval at the time the Will was made and do for the patient what the patient would fairly do for himself if he could. After recent case law, however, the approach is now to focus on what is in the patient's best interests and is therefore more akin to a "balance sheet approach" than a "substituted judgment approach". The 2005 Act, requires the decision-maker to consider the patient's present wishes and feelings and the Act expressly requires the decision-maker to take a number of steps before reaching a decision which include :-
- Encouraging the patient to participate in the decision.
- Considering the patient's past and present wishes, beliefs and values.
- Taking into account the views of third parties as to the patient's best interests.
Having gone through these steps, the decision-maker must then form a value judgment of his own, giving effect to the paramount statutory instruction that any decision must be made in the patient's best interests.
The weight that is going to be attached to the patient's wishes and feelings will be case specific and fact specific, just as the test of incapacity under the 2005 Act is issue specific.
What is the procedure to be followed to apply for a statutory Will?
The procedure is set out under the Court of Protection Rules 2007. The basis of the application is a so-called COP1 Form and a witness statement which sets out the following information and documents :-
- A copy of the proposed draft Will or codicil.
- A copy of any existing Will or codicil.
- Any consents to act by proposed executors.
- The family tree of the patient.
- A statement explaining why the patient might be expected to provide for the proposed beneficiaries.
- A schedule showing details of the current assets.
- A schedule showing estimated income and outgoings.
- Details of any inheritance tax payable in the event of the patient's death.
- A copy of any registered enduring power of attorney or lasting power of attorney.
- Confirmation of residence or domicile.
- Medical evidence as to testamentary capacity.
Any beneficiary under an existing Will or codicil likely to be materially or adversely affected by the statutory will must be named as a respondent to the proceedings. The Court will then decide whether or not the patient should be joined as a party and if they are, then the Court will usually invite the Official Solicitor to act as a litigation friend for them.
The Court will then fix a date and time for the hearing of the application and direct the applicant's solicitor to send copies of all the relevant documents to the parties.
If there is no disagreement, then there may be no need for a Court hearing and the Court will issue an order to allow the authorised person, who could be a beneficiary or a deputy or an attorney, to execute the Will in the required form. The costs of the application include £400 application fee to the Court of Protection and potentially there could be the Official Solicitor's costs for acting for the patient as well as the applicant's solicitor's costs in relation to the application. If a hearing is needed the costs can be significant especially if there is a dispute and a costs order against the applicant which is not ordered from the patient's estate.
What if the application is urgent?
It is possible to make an expedited application to the Court of Protection if death is likely to be imminent and you can produce evidence as to why the application is urgent. It is also possible to make a holding Will that does not deal with everything if necessary.
Conclusion
It is vital that the appropriate procedures are followed in relation to Statutory Will applications and that the correct test of mental capacity is applied.
In some cases it may be helpful or advisable to obtain a professional medical opinion from a medical practitioner such as a geriatric psychiatrist who specialises in making such appraisals of capacity.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.