Statutory wills are made by the Court of Protection on behalf of someone who has lost capacity and may be appropriate in a range of situations. Typically, reasons range from effecting inheritance tax ‘friendly’ provisions, providing for someone not included in the will, where a change of circumstances has occurred, or, indeed, where the incapacitated person has no will in place.
A Statutory Will can only be progressed with a formal application to the Court of Protection, which will consider medical evidence and all other relevant issues.
It will be very important to present to the Court evidence of a person’s wishes and the court will seldom go against a previously expressed decision. That said, the Court’s role is to weigh the person’s best interests in light of all relevant factors. As such a great deal of preparatory work will be required in order to persuade the Court that, not only should a will be made, but that the proposed will is in the person’s best interests. The application would also require the disclosure of the person’s estate, income and expenditure (including future expenses), a full history and justification for the application, for which it may be appropriate to have the views of professional experts.
The Official Solicitor will be appointed by the Court to represent the incapacitated person and it will typically be the case that he or she will need to be briefed and negotiation may even be entered into. If the Official Solicitor is happy with the proposals, it may be that only a Consent Order is required from the Court, otherwise, the matter may proceed to a full hearing, requiring trial bundles, skeleton arguments and so on. If approved, a statutory will is the same as the will of any other client.
Sometimes, applications need to be made at very short notice or within a very tight time frame, such as where the person concerned is gravely ill. In such cases, the Court and Official Solicitor will try their best to assist. However, with both emergency and non time critical applications our team has a great deal of experience and can offer timely advice, where required.
It is typically the case that the estate of the person concerned bear the costs of the parties. However, this is not always the case. In any event, the costs associated with a statutory will can be considerable. Our team can give you an accurate fees guideline and advise on the commerciality of proceeding.