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Back to basics - statutory wills

By Martin Terrell and Brian Bacon, Partners in Court of Protection. This article first appeared in the November 2010 edition of PS, the magazine of the Law Society's Private Client Section.

Click here to view the published article.

Statutory wills

The authority of the Court of Protection to make a will on behalf of a person who lacks capacity now derives from the Mental Capacity Act 2005 (MCA 2005), specifically section 18(1)(i) and schedule 2 paragraphs 1 to 4. The legislation makes no reference to a ‘statutory will’, which is simply the term used to describe a will made pursuant to statute to distinguish it from a will made by a competent testator.

Conditions

Although the court has the power to make a will for a person under the MCA 2005, this is only exercisable within the legislative framework. The powers of the court are subject to a number of crucial conditions:

  • The powers are only exercisable in respect of a matter in relation to which P lacks capacity (MCA 2005, section 16(1)).
  • The decision or order of the court must be made on P’s behalf (MCA 2005, section 16(2)(a)).
  • The powers of the court are subject to the provisions of the MCA 2005, in particular sections 1 (the principles) and 4 (best interests) (section 16(3)).

These conditions lead to a number of consequences which help explain the nature of a statutory will, the form it takes it, and how the court exercises its jurisdiction. They therefore need to be looked at in more detail before the procedure for making an application can be considered.

1. Where P lacks capacity

It is a fundamental principle of the MCA 2005 that  a person’s capacity to make a decision is specific to the decision itself. See, for instance, Re Beaney dec’d [1978] 2 All ER 595. A person may, therefore, lack capacity to manage his own property and affairs, but still have capacity to make a valid will. Thus, when considering whether a statutory will can be made for a person, his lack of capacity in respect of the particular matter, the making of a will, must be addressed. The court cannot proceed until it has medical evidence.

Whilst the test of mental capacity under Section 3 MCA 2005 can be viewed as a modern restatement of the test propounded in Banks v. Goodfellow (1870) 5 QB 549, Banks is still regarded as the litmus test for testamentary capacity; the question of capacity at the time a will is made still falls to be determined under existing common law principles - see Scammell v Farmer [2008] EWHC 1100 (Ch).

2. Made on P’s behalf

It is important to understand that, where the court authorises a will on behalf of someone who lacks capacity, it is an actual will that is being made. The law relating to the form and the execution of a will applies to a statutory will as it does to any other will, save that the statutory will is being made on behalf of P (section 18 (1) (i) MCA 2005). Whilst a person is authorised to execute a will, this is simply to complete a procedure which has been authorised by the court.  The court cannot delegate the decision as to the content of the will to a deputy (MCA 2005, section 20(3)(b)).

So long as the will is properly executed by someone authorised by the court, the will shall have the same effect, for all purposes, as if P had capacity to make a valid will (MCA 2005, schedule 2, paragraph 4(3)). The statutory will is, therefore, effective as a will immediately on execution, and remains effective as a will on the death of P, or indeed on the recovery of P. See Re Davey dec’d [1980] 3 All ER 342; [1981] 1 WLR 164.

While a statutory will can extend to the whole of P’s estate, the MCA 2005 does impose a territorial limit. The court can only dispose of property where the law of the land permits. Not every territory will accept the validity of a will made in England and Wales, let alone one made in statutory form. Thus a statutory will does not apply to immovable property outside England and Wales. On the same basis, a statutory will does not apply (in relation to both movable and immovable property) in England and Wales where P is domiciled outside the jurisdiction, unless the law of his domicile permits a question of testamentary capacity to be determined in accordance with the law of England and Wales (MCA 2005, schedule 2, paragraph 4(4) and 4(5)).

3. In P’s best interests

The court's authority to make a will is a powerful weapon in its armoury of decision-making powers. However, while the making of a will on behalf of a person who lacks capacity can confer an awesome responsibility, the court’s authority to make such a decision is not an arbitrary one.

The MCA 2005 introduced a new approach to making decisions, requiring a structured approach to be taken in determining whether a particular decision is in P’s best interests. Section 4 requires the person making the determination to consider a number of factors and all the relevant circumstances.

Under the previous Mental Health Act jurisdiction and the guidance set out in the case of Re D(J) [1982] 2 All ER 37, it was understood that a statutory will should be based on the likely wishes of “the patient”; the court had to try to determine what the patient would do if he had capacity and, in effect, provide a form of substituted judgment.

This guidance was not reviewed in the light of the new legislation until the case of Re P [2009] EWHC 163 (Ch) came before the High Court in February 2009. In a careful consideration of the statutory will jurisdiction, Lewison J confirmed that the MCA 2005 required a different approach. The court is not looking for a result based on a hypothetical degree of capacity; instead, it must take P as it finds him at the present moment, and then act in his best interests, in the same way as any other decision made on behalf of a person without capacity.

The judge emphasised that evidence of P’s wishes was extremely important, and the court will be unwilling to impose a new decision when there is clear evidence of an earlier decision. At the same time, the court is not bound by that earlier decision. Evidence of past wishes and feelings is one factor that needs to be taken into account, and the court’s discretion is primarily over the weight to give to that factor, relative to other factors.

There is, however, still a difficulty in relation to the wishes of a testator whose views are unknown, eccentric or divisive, or where it cannot be assumed that P would wish to make a will. Lewison J addressed this in Re P (paragraph 44), when he was asked to justify departing from the testator’s earlier controversial wishes:

“… what will live on after P's death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will. In my judgment, the decision-maker is entitled to take into account, in assessing what is in P's best interests, how he will be remembered after his death.”

When can a statutory will be made?

Understanding the jurisdiction of the court to make a will for P allows us to consider when a statutory will can be made. To a great extent, this is a matter of common sense. Any person who lacks capacity should have his testamentary arrangements considered, just as any other prudent adult. In most cases, there is already a suitable will, or the intestacy provisions will be appropriate.

There will, however, be other cases where a statutory will should be considered. It remains of some concern that so few statutory wills are made, given that there are many situations where such a will might be necessary. For example:

  • A property (comprising the largest part of the estate) has been left as a specific legacy and the property has to be sold for nursing home fees.
  • The estate has reduced in value.
  • P is a young adult who have never made a will, and he has received an inheritance or personal injury award.
  • An existing will names beneficiaries who have died.
  • An existing will makes no provision for events that were not anticipated, for instance, a couple has left their estate to one another without providing for a gift on the second death.
  • A beneficiary under an existing will has already received substantial gifts and it would be inequitable for the will not to be adjusted to reflect those gifts.

The court will not determine the validity of an earlier will, and the jurisdiction should not be abused to resolve disputes over a will made in the testator’s lifetime. However, where there are grounds for a new will to be made, the court will allow an earlier will to be considered as evidence of a person’s previous wishes. See VAC v JAD & Ors [2010] EWHC 2159 (Ch).

An application for a statutory will is not undertaken lightly. As has been pointed out, the court is being asked to make a major decision on behalf of someone who by definition lacks capacity. There are also likely to be persons prejudiced by the will who may oppose the application. The Official Solicitor is also likely to act as litigation friend for P.  The Court of Protection Rules 2007 (CPR 2007) and practice directions impose a procedural formality that can lead to a simple adjustment to a person’s will becoming a major legal process.

There are also considerations of cost. The usual rule is that the estate will bear the costs of the parties (CPR 2007, rule 156). However, this cannot be taken for granted. The applicant must also consider whether the estate will bear the considerable costs that are likely. If the estate is small, then however desirable a statutory will might be, the question of whether it is essential needs to be considered carefully.

Who may apply

Section 50 MCA 2005 sets out a general rule that permission is required to make an application to the Court of Protection unless it is made:

  • by a person who lacks or is alleged to lack capacity;
  • by the donor or donee of a lasting power of attorney (LPA) to which the application relates;
  • by a deputy appointed by the court for a person to whom the application relates; or
  • by a person named in an existing order of the court, if the application relates to the order.

Rule 51 CPR 2007 provides further exemptions to the general rule. Thus permission is not required if the application is made by the Official Solicitor, the Public Guardian or concerns P’s property and affairs, unless the application is of a kind specified in rule 52. Permission is then required for any another person to make an application, unless made by:

  • a person who has made an application for the appointment of a deputy for which permission has been granted but which has not yet been determined;
  • a person who, under any known will of P, or under his intestacy, may become entitled to any property of P or any interest in it;
  • a person who is an attorney appointed under an enduring power of attorney (EPA) which has been registered in accordance with the MCA 2005;
  • a person who is a donee of an LPA which has been registered in accordance with the MCA 2005; or
  • a person for whom P might be expected to provide if he had capacity to do so.

Permission would therefore be required if, for instance, a concerned relative or friend wished to make an application but had no financial interest in the outcome.

The application process

An application for a statutory will must be dealt with as a formal application to the Court of Protection. The forms can be obtained free of charge from the Court Service website, and the following documents must be lodged with the court:

  • application form (COP1) in duplicate;
  • supporting information form (COP1A);
  • permission form (COP2), (if permission is required);
  • assessment of capacity form (COP3);
  • witness statement (COP24) exhibiting any evidence or information required to support the application, and providing the information required by Practice Direction 9F; and
  • cheque for £400.

The form

A new application is made in form COP1, setting out the core details of the application. Although this form is short, it is the most important part of the process. It not only opens the proceedings and identifies the core issues of the case, but also sets out the identities of the parties.

Evidence in support

Practice Direction 9F sets out the essential information required by the court if it is to approve a statutory will. It is essential that the applicant follows these requirements carefully.

The court will know nothing about P or P's circumstances. This needs to be explained in sufficient detail, so that the court can be persuaded that a will should be made, and that the proposed will is in P’s best interests. The applicant must not only show the value of the estate, income and expenditure (as well as any future expenses) and provide a testamentary history, but also explain why the application has been made, and why the proposed will is in P's best interests. The court may, therefore, need more personal information about the nature or character of P. Was P generous or frugal, solitary or gregarious, eccentric or sensible, easy going or passionate? What were (or are) P's wishes and interests, beliefs and values?  What other factors would P consider?

The applicant should not take facts for granted. He cannot merely assert that a proposed beneficiary has been kind to P or been the beneficiary of P’s generosity. Is there evidence of this relationship? Beneficiaries or other witnesses should be asked to provide witness statements, containing a statement of truth. Letters, Christmas cards or even photographs may also be exhibited, to provide evidence of P's character and the connection between P and the proposed beneficiary.

Parties to the application

It is the role of the applicant to show, in form COP1, who is a respondent to the application and who should simply be given notice. Practice Direction 9F provides:

“The applicant must name as a respondent:

  1. any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application;
  2. any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application; and
  3. any prospective beneficiary under P’s intestacy where P has no existing will.”

This can cause difficulties where there is a large class of unknown beneficiaries. The applicant should apply for a direction addressing a time limit for tracing beneficiaries and also a budget for instructing a genealogist. The practice direction is, unfortunately, quite specific. It refers to “any beneficiary”, and not just a beneficiary who is “adversely affected” but to one who is “materially affected”. Thus, a beneficiary receiving a small share of an estate which will not be disturbed by the proposed statutory will must still be named as a respondent.

The court will invariably also join P as a party, in which case the court will generally direct that the Official Solicitor be invited to act as a litigation friend.

The court will issue the application and return an endorsed copy to the applicant, with a directions order as to service on the named respondents. Time limits for an exchange of evidence and a hearing date may also be set out in the order. The applicant must as soon as practicable, and no more than 21 days after an application has been issued, serve on each respondent a copy of the application, any evidence in support and a form for acknowledging service (form COP5). A respondent does not become a party to the proceedings unless he files an acknowledgement of service form. The applicant must also, within seven days of service, file a certificate of service (COP20) with the court in respect of each person served or notified.

Subsequent procedure

To save the time and expense of an attended hearing, the parties are expected to attempt to reach agreement on the papers or, at least establish the level of consensus that can be achieved. However, the parties need to remember that any decision is for the court to make on P's behalf, not for the parties to agree between themselves. Negotiations may be conducted through the Official Solicitor, who will advise the court of the results. If the application is unopposed and is not contentious, the terms of the proposed will may be agreed with the Official Solicitor. The Official Solicitor will then write to the court providing details of the consents obtained, and giving his own consent. The court will then determine the application on the papers, if necessary without a hearing. The order is then prepared and sealed without an attended hearing.

Where additional evidence is supplied to the court, this must be in the form of a witness statement. If evidence is required from other parties (for instance an existing will held by P's former solicitor), then it may be necessary to apply (using form COP9) for a direction or witness summons to obtain disclosure of information.

The hearing

If the application cannot be dealt with on the papers, further directions may be given for the service of evidence, preparation of trial bundles, exchange of skeleton arguments and set a hearing date. Most cases will be heard in chambers before a district or circuit judge, although cases involving complex or highly contentious issues or law or fact may be referred to a High Court judge. The Official Solicitor will also be represented if appointed to act as litigation friend for P. Unless judgment is reserved, the judge will make the order at the hearing, which will authorise the applicant or some other person to execute the statutory will in the form approved by the court.

Emergency applications

Where the application relates to a statutory will and P is in danger of dying before the application can be heard within the usual timescale, the court will try to assist, although where the urgency is due to the delay of a party then that party may be expected to suffer the consequences (see Re R [2003] WTLR 1051). The applicant should, in the first instance, contact the court by telephone to explain the circumstances. The court will arrange for the application to be expedited, provided that it receives unequivocal medical evidence showing that P is terminally ill and giving an indication of his life expectancy. The application (if not yet  filed) should be filed immediately, and a copy served on the Official Solicitor and any other person whom the court would normally expect to be served, so as to save time. The applicant must also explain why the application could not have been made earlier, and whether anyone will be prejudiced by the application being dealt with urgently.

In extreme cases, the application may be heard within a matter of days, and the court will authorise the applicant’s solicitor or the Official Solicitor to execute the statutory will. The order is effective immediately it is made, and there is no need to wait for a sealed copy to be issued.

The court does not as a rule favour urgent applications. These are procedurally weighted in favour of the applicant, and do not allow other parties sufficient time to respond. Where there is a genuine risk that P will die before the matter can be determined substantively, the court will perform a delicate balancing act, weighing the prejudice to one party if no will is made against the prejudice to the other if a will is made. Depending on the complexity of the matter, the court may do one of the following:

  • authorise a ‘holding’ will to be executed and set a date for a further substantive hearing. A holding will should represent the minimal departure necessary from the status quo ante. A discretionary will is often seen as an easy remedy where there is uncertainty over the eventual form of the statutory will, but such wills are not popular with the court as they may be seen as a way of bypassing the court’s jurisdiction.
  • leave the provisions of an existing will or intestacy in place and adjourn the hearing to a later date.
  • authorise a statutory will to be executed as a final will. If a party remains dissatisfied with the order, he is entitled to appeal.

Execution

Whether or not there is a hearing, the statutory will is approved by the court, which will issue an order authorising a named person to execute the will (in the form of the draft endorsed by the judge) on behalf of P. Sealed copies will be sent to all the parties. The order will also provide authority for safe custody of the will and for the costs of the parties.

It is the responsibility of the applicant’s solicitor to make any amendments to the draft will to conform to the terms of the draft will approved by the court. The final engrossment must contain a certificate by the solicitor stating that the will is a true copy of the approved draft.

The person authorised must then execute the will in accordance with MCA 2005, schedule 2, paragraph 3. The will is executed in the same way as any other will, except that the authorised person signs twice, once in P’s name and then once in his own name, and the will must be sealed by the court.

Practice Direction 9F provides a draft or model testimonium and attestation clause.

Subsequent procedure

Once the statutory will has been executed, the original will must be sent to the court with two certified copies, and the draft will endorsed by the judge. The statutory will is then sealed with the seal of the court and sent to the person authorised to hold the will, usually the applicant's solicitor. The statutory will is the same as the will of any other client: it is a confidential document and must not be disclosed without the consent of the court during the lifetime of P or so long as P lacks capacity.

Click here to view the published article.