What is a statutory will?

Our solicitor Anna Kerr is a valued member of our Wills, Trusts and Probate Team, having worked in the area for 18 years.

Her specialism in the Court of Protection led her to write this blog post to help explain all about statutory wills.

A will is a document that allows you to decide how your estate will pass following your death.

Lack of mental capacity

Unfortunately, there may be situations whereby a person lacks the required mental capacity
to execute a will for themselves or to make amendments to an existing one.

Significant events and changes of circumstances in a person’s life usually means that their will is reviewed and a new one made.

On occasions the change in circumstances is such that the person’s loved one feels it necessary to apply to the Court of Protection for a new will to be made on
their behalf.

This type of will is called a statutory will. The application can be made by either the
attorney under an Enduring or Lasting Power of Attorney or by a deputy under an order by the court.

Court of Protection

The Court of Protection has specific authority, brought about by the Mental Capacity Act 2005 to make a statutory will on behalf of a person who lacks the required capacity themselves.

Why a statutory will can be necessary

There may be several reasons why a statutory will is necessary for the person who lacks capacity, such
as:-
* Tax planning
* A will has never been made before
* Complex family circumstances
* A gift in a previous will is no longer valid
* Beneficiaries of a previous will have died and no further provisions have been made.

Basic requirements

There are basic requirements to be met before an application for a statutory will can be made.

The person who lacks capacity must be:-
Over 18 years of age
Lacking testamentary capacity to make a will. This will need to be confirmed in an assessment carried out by a health care professional or someone so qualified to assess capacity
domiciled in England or Wales. (In general, this means that their permanent home is in either country.)

In order to apply to the Court of Protection for a statutory will there is a lengthy and comprehensive application that will need to be completed.