The Whys, What’s and Wherefores of Statutory Wills

A statutory will is a will made on behalf of someone who does not have the mental capacity to make a will themselves. This might apply to older people with Alzheimer’s or dementia, or someone who has suffered a brain injury.

To draw up a will, solicitors need evidence concerning a person’s mental capacity and confirmation that the person understands all the implications of what they are about to do. If it can be shown that the person did not possess the mental capacity to make a will that will might not be valid when they die and it can be contested by others.

However, if it can be shown that the person does not understand the principles behind making a will and that they cannot make a will by themselves, then an application can be made to the Court of Protection (which deals with applications relating to anyone who doesn’t have the mental capacity to manage their own affairs) for a statutory will.

The statutory will is then drafted and approved on their behalf.

If the person who has lost mental capacity has made a Lasting Power of Attorney (LPA), a legal document that appoints one or more people as attorneys, those appointed as attorney can step in and make a submission to the Court of Protection to have a statutory will drawn up and approved.

What can happen, however, is that the person is not able to appoint attorneys before they lose capacity, or the appointed attorney no longer wants to or is able to act on their behalf. If this is the case, a deputy is usually appointed on their behalf by the Court.

Anyone can be a deputy – a friend or family member, for example or a professional person such as a solicitor. The role of a deputy is very similar to an attorney – the difference being that the deputy is appointed by the Court of Protection to manage property and affairs, and/or health and welfare matters, whereas the attorney is the choice of the person concerned.

The action and behaviour of attorneys are not monitored by anyone (unless a specific complaint is made), but court-appointed deputies are regularly scrutinised by the Office of the Public Guardian (which works alongside the Court of Protection to oversee the general management of the affairs of people lacking mental capacity and protect them).

Deputies also need to complete reports for the OPG every year explaining how they have spent the money of the person lacking capacity and what decisions they made on their behalf.

You don’t need to be an attorney or deputy to apply to the Court of Protection to get agreement on a new statutory will, but it is certainly simpler if you are an attorney or deputy. There can’t be any debate about lack of mental capacity if you are making such an application as an attorney or an appointed deputy – because by definition you wouldn’t be acting in that capacity if that was not the case.

However, anyone who was a beneficiary under an existing will is also entitled to make such an application – but they would have the additional burden of having to prove lack of mental capacity before things could go any further.

The application needs to set out all the financial circumstances of the impaired person, as well as the current arrangements made for their care. It should explain who forms part of their family and what the nature of those relationships is. This information allows the court to build a picture of those people who might expect to inherit something in the event of the person’s death.

A draft of the proposed will setting out how the estate will be divided when the person dies may also be provided to the court.