Statutory Wills

13/10/2011

By Brian Bacon, Partner in Court of Protection

Most readers will understand the need for themselves and clients to have a Will, but issues arise when a client lacks capacity to make a Will.

What is a statutory Will?

A statutory Will is a testamentary document drawn up and executed on behalf of a person who lacks capacity, under the jurisdiction of the Court of Protection. The Court of Protection has the ability to make decisions for people who are unable to do so for themselves. Since October 2007, the authority of the Court has stemmed from the Mental Capacity Act 2005 (the Act). Whilst there is no reference in the Act to ‘statutory Wills’, this is the term used by the Court and practitioners to set it apart from a Will made by a testator with testamentary capacity.

Assessing capacity

The 19th century case of Banks - v - Goodfellow outlined that a person will have testamentary capacity if they have a sound and disposing mind and memory. This requires the testator to understand three things:

• the nature of the act of making a Will and its effects
• the extent of the property that they will be disposing of and
• the claims to which they ought to give effect.

Therefore, if the person concerned, referred to as ‘P’, wishes to make a Will but there is a concern that they might not meet the Banks criteria, then it is imperative to obtain independent medical opinion.

A fundamental principle of the Act is that a person’s capacity to make a decision is issue specific. Accordingly, it is important to point out that because a client is deemed under the Act to be unable to manage their own financial affairs, does not automatically mean they do not have testamentary capacity.

Therefore, the medical evidence obtained must specifically address P’s testamentary capacity; it will be down to us as lawyers to instruct properly the medical practitioner as to the three-stage test, and the principles of the Act.

In practice, we are experiencing many cases where medical practitioners, GPs in particular, are unable or unwilling to undertake the assessment. In these circumstances, one option available is to apply to the Court of Protection for a declaration of capacity. The Court can then instruct a Court of Protection medical visitor to visit P.

Where P has capacity

If the opinion is that P does have testamentary capacity, it may be considered wise to ask that medical practitioner to witness or approve the Will. Whilst this does not in itself prove capacity or validity, it will provide strong evidence that the issue of capacity has been addressed. From the point of view of good practice, a clear record of correspondence, advice, meetings and conversations must be kept (preferably typed given the penchant of lawyers and medical practitioners for interesting handwriting). These can then be referred to in the future, in the case of any dispute or query.

Where P does not have capacity

If the opinion is that P does not have testamentary capacity, then the only course of action open will be to make an application to the Court of Protection for a statutory Will to be drawn up and executed on P’s behalf.

When should a statutory Will be considered?

In our view, a Deputy appointed by the Court has a duty to consider whether a mentally incapacitated person’s existing testamentary arrangements need to be reviewed. In a case where the Deputy considers that it would be in the best interests of the person for the existing arrangements to be altered, then it is appropriate for the Deputy to consider applying for the making of a statutory Will.

However, it is not just a Deputy who should consider a statutory Will; someone appointed as an attorney under an Enduring Lasting Power of Attorney could apply, as could someone who is an existing beneficiary under a previous Will or the rules of intestacy, or someone for whom P would be expected to provide.

There are various occasions where a statutory Will might be in P’s best interests. For example:

• P might have never previously made a Will
• P’s estate might have increased in value (due to an inheritance)
• The provisions of the existing Will or intestacy might not anticipate events which have actually happened and it would be inequitable not to alter these provisions

If there is a Deputy for a minor, then a statutory Will cannot be made. However, the issue should still be borne in mind, with a view to taking action once P reaches 18.

Procedure

For helpful guidance in this regard there are various practitioner works available which outline the procedure in detail. For more information, see this detailed article dealing with the procedure for obtaining a statutory will in much greater detail.

Emergency Applications

It is appropriate to touch briefly on the issue of emergency applications. A statutory will application is being considered in some case where P is in danger of dying before the application can be processed or heard within the usual court timetable. In that situation the Court and Official Solicitor (who will usually be joined to act as litigation friend for P), will do what they can to assist.

It is not an ideal situation, and whilst the Court does not favour urgent applications, it nonetheless obviously appreciates that in some circumstances it cannot be avoided. Where there is an extreme case, an application may be heard within a few days. As much time as possible should be allowed for an application, as it will then allow other interested persons appropriate time to respond.

Costs

The general rule on costs in applications such as this is that the costs will be paid out of P’s estate. The Court can depart from that general rule, due to any of the reasons outlined in the legislation. It is very rare in our experience for the Court, in statutory Will applications, to depart from the general rule. If the Court was to depart from the general rule, it would probably be due to the conduct of one of the parties.

Summary

As well as preparing Wills and undertaking tax planning for clients with capacity, our dedicated Court of Protection team, one of the largest in the country, is able to provide specific experience and expertise in dealing with statutory Will applications in the Court of Protection.

If you or your clients need advice in this regard, please do contact one of our specialists in our Court of Protection team.