A will is an important document that, assuming we are of sound mind to make it and understand its implications, can be used to set out how our belongings will be distributed after we die. But what if someone has money, possessions and property but they lack the mental capacity to make a will?

Below we look at how a statutory will can provide the loved ones of someone lacking testamentary capacity with a suitable way forward.

What is a statutory will?

A statutory will is a will that is overseen by the Court of Protection. This court has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

In considering the contents of any statutory will, the court will have regard to the personal circumstances of the individual, including any feelings or wishes they might have previously expressed that could be relevant to the distribution of their estate, as well as the views of those closest to them.

It is this careful and thorough assessment of an incapacitated person’s best interests that can bring the necessary peace of mind for the loved ones of someone who no longer has the capacity to make or amend their own will.

How is a statutory will put in place?

If you would like to make or amend a will on behalf of someone who can longer do this for themselves, for example, because they have become incapacitated through illness or injury, you will need to apply to the Court of Protection.

You can apply for a statutory will in circumstances where the person is not able to understand what making or changing a will means; how much money they have or what property they own; or how making or changing a will might affect the people they know, including those mentioned in the will or those left out.

That said, someone who has merely lost the mental capacity to manage their own finances may still have the ability to make or amend a will. As such, the Court of Protection will need medical proof that the person is lacking testamentary capacity. You will also need to provide various documents in support of an application, including a copy of any proposed will or amendments and details of the people who would inherit under the terms of any existing will or the person’s intestacy who will be joined into the application to the Court. 

The Official Solicitor may be appointed to act on behalf of the person lacking testamentary capacity and the application will be scrutinised by the Court.  If it is contested (perhaps by a beneficiary of any existing will) it could ultimately be decided by a court hearing. 

An application for a statutory will can therefore often be a difficult, expensive and protracted process and it is important to consider carefully the merits of the case before the application is made.  However, if the deceased’s estate is likely to be of significant value or there are other complicating factors, it can be advisable to apply to put place an appropriate statutory will.

What if someone dies without a statutory will?

If a loved one who has become incapacitated dies without a statutory will, any will that existed prior to their illness or accident will usually still stand. If, on the other hand, they die intestate, ie; without having a will in place at all, certain rules will come into play here. These are known as the rules of intestacy, where no protection whatsoever is offered under these rules for unmarried partners.

Further, in circumstances where the deceased was married or in a civil partnership at the time of death, depending on the value of their estate, this may mean that no provision is made for the deceased’s children.  Or, if the deceased left minor children who inherit under the terms of the intestacy, they will inherit on reaching the age of 18 years regardless of whether this is appropriate or not. 

Another factor which may be relevant is where there has been no provision made for someone who could expect to receive a share of the deceased’s estate.  This might relate to a spouse or partner, a child or a person who has been maintained by the deceased prior to the death.  In which case they would have no option but to make a claim against the deceased’s estate under the Inheritance (Provision for Families and Dependants) Act 1975.

It is therefore important to seek expert legal advice as soon as possible to ensure that adequate financial provision is made for any dependants and loved ones of the incapacitated person by way of a statutory will.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.