A statutory will is a legal document created by the Court of Protection for a vulnerable person who lacks mental capacity to make their own will. The Court steps in when conditions such as dementia or severe brain injury prevent an individual from drafting or updating their will.
Applications for statutory wills rose by 15% in 2022 compared to the previous year. This increase reflects growing awareness of the need to protect each vulnerable individual's interests when mental incapacity strikes - a situation that can leave existing wills outdated or non-existent.
This article covers the definition and purpose of statutory wills, when they're needed, the application process, the Court of Protection's role, and key considerations for families. We'll address common concerns and emotions families face when considering a statutory will for a loved one who has lost mental capacity.
When is a statutory will necessary?
Statutory wills become necessary when a person lack mental capacity and cannot make a valid will. They also apply when an existing will is outdated or non-existent. In the UK, approximately 850,000 people live with dementia - a common reason for statutory Wills. Sudden accidents or illnesses can also lead to a need for a statutory Will.
You might feel worried and uncertain about your loved one's situation. Statutory wills protect vulnerable individuals and their families, giving you a way to ensure your loved one's wishes are respected even when they can't express them.
Let's explore two key aspects of statutory wills: loss of mental capacity and issues with outdated or non-existent wills.
What constitutes loss of mental capacity?
Mental capacity, in relation to will-making, refers to a person's ability to make specific decisions about their person's estate. It can fluctuate, requiring professional assessment. Conditions that can lead to loss of capacity include dementia, severe brain injury, stroke, and mental health conditions.
The legal system uses the term 'person lacking mental capacity' for individuals who cannot make their own decisions.
The legal test for mental capacity, also known as testamentary capacity, in will-making comes from the case of Banks v Goodfellow (1870).
It outlines four key elements:
- understanding the nature of making a will;
- understanding the extent of one's property;
- comprehending claims on the estate; and
- being free from mental disorder that influences decisions.
This objective test determines a person's mental ability to make informed decisions about their estate.
How do outdated or non-existent wills create problems?
Statutory wills address situations where an existing will is outdated or where no will exists. A 2018 survey found that 54% of UK adults don't have a will. This lack of planning can lead to assets being distributed according to intestacy rules, outdated wishes being followed, or family conflicts arising. Intestacy rules determine how assets are distributed when someone dies without a valid will.
For instance, if you had made a will leaving everything to your spouse, but after divorce and loss of capacity, the will no longer reflects your wishes. In this case, a statutory will could ensure fair distribution to your children or new partner. This scenario shows why keeping wills up to date matters and how statutory wills help when capacity is lost.
How does a statutory will differ from a standard will?
Statutory wills differ significantly from a standard or normal will in their creation, execution, and legal standing. The Court of Protection creates statutory wills, not the individual. This specialist court makes decisions on behalf of people who lack capacity. While about 500,000 wills are written each year in the UK, only a small fraction are statutory wills.
The court considers the person's best interests rather than solely their expressed wishes when creating a statutory will. This approach affects the will's content, potentially leading to different outcomes than if the person had made the will themselves. And once approved, a statutory will carries the same effect and legal weight as a standard will.
Who can apply for a statutory will?
Family members, close friends, legal representatives, court-appointed deputies (a deputy appointed by the court), and charities named in an existing will can apply for a statutory will. In 2021, family members initiated 65% of statutory will applications. Court-appointed deputies make decisions for someone who lacks capacity.
The applicant's responsibilities include gathering evidence, liaising with legal professionals such as the official solicitor, and representing the vulnerable person's interests.
Choosing the right person to make the application is important. Consider factors such as knowledge of the vulnerable person's affairs, relationship dynamics, and ability to navigate the legal process.
What is the process for obtaining a statutory will?
The application process for a statutory will takes approximately 6-8 months. It involves gathering evidence of lack of capacity, collecting financial information including outgoings details, drafting a proposed statutory will, preparing the application form (COP1), which serves as a capacity form, submitting supporting documents, and notifying interested parties.
The process is complex. Over 90% of successful applications involve legal representation, with an attorney chosen. This high percentage reflects the intricate nature of the process and the importance of presenting a robust case to the court. While you can apply without a solicitor, seeking professional legal advice gives you the best chance of success.
What role does the Court of Protection play?
The Court of Protection assesses evidence of mental incapacity, reviews proposed wills and any lasting power of attorney, considers objections from interested parties, and makes final decisions in the statutory will process. Established by the Mental Capacity Act 2005, the court balances an average of 7-10 distinct factors in each case, ensuring a thorough and fair assessment of the situation.
The court protects the vulnerable person's best interests and welfare decisions. It weighs various perspectives and factors impartially. For instance, it examines medical evidence, reviews financial records, and considers family dynamics - all to reach a balanced decision that respects the person's wishes and welfare.
What factors does the Court of Protection consider?
The Court of Protection weighs several factors when making decisions about statutory wills.
These include:
- the vulnerable person's best interests;
- their wishes and feelings (past and present);
- their beliefs and values;
- views of family members and carers; contents of previous wills;
- size and nature of the estate;
- tax implications; and
- potential claims on the estate, including inheritance tax considerations.
The court's decision stems from a holistic assessment of all these elements, with no single factor automatically decisive. It uses the term 'vulnerable person's wishes' when discussing the consideration of the person's preferences.
The 'best interests' principle, as outlined in the Mental Capacity Act 2005, is applied by considering the person's past and present wishes, their values and beliefs, and the views of family members and carers. It also takes into account the need to encourage participation in decision-making. The court uses the term 'vulnerable person's beliefs' when discussing the consideration of the person's values.
What evidence is needed for a statutory will application?
A statutory will application requires comprehensive evidence. You must provide medical evidence of mental incapacity, financial information including outgoings details, details about family and personal circumstances, copies of existing wills, witness statements (each being a witness statement) from family members and carers, and a draft of the proposed statutory will.
Typically, complete applications include 15-20 separate pieces of evidence.
A medical professional's assessment is often required. Incomplete or inconsistent information can delay the process or lead to an unfavourable outcome. For instance, if you're applying for a statutory will for your parent with dementia, you'd need comprehensive medical reports clearly demonstrating lack of capacity. These reports, combined with detailed financial records and family statements, would give the court a clear picture of your parent's situation.
How are existing wills considered in statutory will cases?
The Court of Protection analyses any existing wills when making decisions about statutory wills. Studies show approximately 60% of statutory will cases involve modifying an existing will rather than creating an entirely new one. The court examines reasons for past decisions, considers changes in circumstances such as if the person received substantial gifts, and evaluates whether the existing will still reflects the person's best interests. When reviewing an existing will, the court balances respect for the person's past wishes with the need to address current needs and relevant circumstances.
You might face a situation where your parent's existing will leaves everything to a charity, but their care needs have significantly increased. In this case, the court might modify the will to ensure adequate provision for care while still respecting the charitable intent. The court's approach involves a careful balancing act - weighing past wishes against current needs and relevant circumstances.
What are the costs involved in obtaining a statutory will?
Obtaining a statutory will involves several costs. Legal fees range from £5,000 to £10,000. The court application fee is £371. Medical reports cost between £500 and £1,500. Additional expenses may include financial assessments or professional valuations. The total cost typically falls between £10,000 and £15,000.
The complexity of the case, the size of the estate, and other factors can influence the total cost. While these amounts may seem substantial, they protect the vulnerable person's interests and ensure proper distribution of their estate in a stress free manner.
How can family dynamics affect statutory will applications?
Family relationships and conflicts significantly impact the statutory will process. A 2020 survey found that 28% of families reported substantial disagreements during estate planning. Common sources of family conflict include: disagreements over asset distribution; differing interpretations of the vulnerable person's wishes; concerns about undue influence; and historical family disputes resurfacing.
Mediation is frequently used to resolve disputes, with court-recommended mediation boasting a success rate of around 70% in family estate matters. Open communication and professional guidance help navigate complex family dynamics. For instance, if you and your siblings disagree about your parent's asset distribution in a statutory will, mediation could lead to a mutually acceptable solution. This might involve agreeing on a fair division of assets that respects your parent's wishes while addressing each sibling's needs.