A Statutory Will can be made on behalf of someone who lacks testamentary capacity to make a will themselves (P) and is over 18 years old. The jurisdiction derives from section 18(1)(i) of the Mental Capacity Act 2005 (MCA), extending the court’s powers over P’s property and affairs under section 16 of the MCA.
Key points for practitioners
- Only the Court of Protection (COP) has the power to execute a will on behalf of P. It is not a power that can be delegated to another person, for example to a deputy or attorney.
- Statutory Wills do not apply to immovable property outside of England and Wales or any other property if P is domiciled outside of England and Wales and that jurisdiction’s capacity law applies.
Why they matter in practice
For practitioners, the importance lies in:
- Risk management. Statutory Wills can be used to create a valid will where there is doubt as to the validity of the current will in place for P. This reduces the likelihood of the estate becoming embroiled in costly and stressful post-death contentious probate proceedings.
- Alignment with P’s best interests. The process recognises that even though a person may lack capacity to execute a will, their estate should still be distributed in a way which best aligns with P’s past and present wishes and feelings. Consideration is given to P’s beliefs and values that would be likely to influence their decision if they had capacity.
- Estate planning. Addressing vulnerable beneficiaries, potential trust structures, or inheritance tax mitigation during P’s lifetime can help to preserve more of P’s estate for the beneficiaries post-death.
When to advise on a Statutory Will
Applications often arise where:
- The intestacy provisions would not align with P’s interests. For example, if P has separated from a partner (but remains legally married), is estranged from children or has complex family dynamics.
- The existing will is outdated because there are beneficiaries named in the current will who have become estranged from P or are deceased, or new relationships or dependants now exist.
- Assets have changed and specific gifts no longer exist, for example property has been sold to meet care costs, creating the risk of partial intestacy.
- P’s wealth has grown or diminished significantly requiring tax-efficient restructuring.
The application process
The COP will expect a comprehensive evidential package, typically including:
- Medical evidence of lack of testamentary capacity.
- A family tree and details of beneficiaries (current and proposed).
- A schedule of P’s assets and liabilities.
- A detailed witness statement explaining why the proposed Statutory Will is in P’s best interests.
While many Statutory Wills are negotiated and agreed between the parties without the need for a hearing, occasionally, in contested proceedings, the COP will be required to order the terms for the Statutory Will.
Practitioner key takeaways
- Always audit P’s existing will or intestacy position against their present circumstances.
- Consider any potential inheritance disputes early on as Statutory Wills can prevent costly post death litigation.
- Consider changes to tax legislation and whether there are tax planning opportunities for P.
- Ensure the evidential foundation is robust. Evidence and clear reasoning are critical for a successful application.
Emma Bryson is a Senior Associate in Michelmores Disputed Wills, Trusts & Estates team
