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All you need to know about Statutory Wills
Nimalee Bastian-Carter, Associate Solicitor, outlines all you need to know about Statutory Wills and the role of the Court of Protection when an individual loses the capacity to make informed decisions for themselves.
What is a Statutory Will?
In order for a person, known as the ‘testator’ to make a valid Will, they must have a clear understanding of the act of making a Will, an idea of the extent of their estate and regard to the people that they should provide for from their estate.
If a testator is unable to understand the above, they are said to lack ‘testamentary capacity’ and an Attorney or Deputy will have to apply on their behalf to the Court of Protection to execute a Will on their behalf. The testator is known as ‘P’. Medical evidence must be obtained to confirm that ‘P’ lacks the requisite testamentary capacity to make a Will before an application to the Court can be made.
Why is a Statutory Will necessary?
An application may be made to the Court of Protection because it is considered necessary for ‘P’ to amend an existing Will due to a change in their circumstances or to make a new Will.
A Statutory Will is needed to ensure that ‘P’s wishes can be carried out upon death and to ensure their estate is distributed fairly.
It is always necessary to consider what is in ‘P’s best interests i.e. what they would have done if they could make a Will themselves, what their personal beliefs and values are and consideration must also be given to their past behaviour and decisions.
A Statutory Will can also help with tax planning but this should not be the primary reason for making a Statutory Will on ‘P’s behalf.
How is a Statutory Will made?
The making of a Statutory Will can be complex and is not a quick process. A number of forms and supporting documents have to be submitted to the Court of Protection and a fee is payable. This will include details of ‘P’s income and expenditure - both present and future, a family tree and details of taxes which may arise on their death.
The Official Solicitor is appointed to represent ‘P’ and to ensure all parties act in ‘P’s best interests. Interested parties can be those materially affected if there is an amendment to an existing Will or those who may be entitled on intestacy which is if a valid Will does not exist at the time of the death, the estate is distributed in accordance with the intestacy rules. Once the contents of the Will have been agreed by all the parties concerned, the Will is signed on behalf of ‘P’, witnessed by two independent witnesses and then sent to the Court of Protection to be sealed by a Judge.
Upon ‘P’s death, the estate will be administered and distributed by the Executor(s) in accordance with their Will.