If someone no longer has the mental capacity to make their own Will, a Statutory Will can be made on their behalf under the Mental Capacity Act 2005.
The main difference between a Will that you would make for yourself and a Statutory Will is that a Statutory Will is approved by the Court of Protection. This can help to prevent situations where the validity of the Will is challenged, usually by beneficiaries.
Applying for a Statutory Will can be a long and confusing process. Our Court of Protection Solicitors can help you break it down into achievable steps. Get in touch to discuss how we can help.
When is a Statutory Will Necessary?
For some people, even if they’re unable to create a Will, the Rules of Intestacy will be enough to carry out their wishes automatically so there may be no need to apply for a Statutory Will.
But this won’t be the case for everyone. For example, if someone without mental capacity is in a relationship but not married, applying for a Statutory Will is the only way to make sure their partner is recognised as a beneficiary.
There are some circumstances where it will be more likely that the Court of Protection authorises a Statutory Will, these include:
- a person without mental capacity has a Will that’s out of date;
- adjustments need to be made for immediate and future care costs;
- assets in the Will have increased or decreased in value.
If someone has dementia but is still able to instruct a Wills and Trusts Solicitor to write their Will, a Statutory Will may not be needed. But if a professional advises they don’t have the mental capacity to make decisions with an understanding of the consequences, a Statutory Will could be necessary.
Can Anyone Apply?
Often, the person who’s lost capacity to write their Will already has a Lasting Power of Attorney in place. But if not, the Court will appoint a Deputy. This is usually a family member or friend who will act on behalf of a vulnerable person.
How do I Apply?
If a Solicitor or Medical Professional has advised that you should start the application process for a Statutory Will, you’ll need to apply to the Court of Protection.
This can be a complicated process and we’d recommend using the services of an experienced Solicitor to help you. They’ll be aware of the forms and evidence needed for a successful application and support you in submitting these.
- How Much Will it Cost?
The general rule is that the person who lacks capacity will pay for the costs of the application form from their estate. This will include any fee for a capacity assessment, the Court fee for the application, Solicitor’s costs and any other legal fees.
- How Long Will it Take?
The process of getting a Statutory Will usually takes up to six months, but this will depend on the Court’s workload at the time you apply and whether there are any challenges to your application.
In certain situations, the process can be made quicker if you can demonstrate that it is urgent because someone’s death is imminent.
- Can I Appeal the Decision?
If you believe your application for a Statutory Will has been unfairly rejected, you can ask for the decision to be reviewed within 21 days. This will bring a further expense of £234 but you could be entitled to financial support if you’re earning a lower income.
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