Wednesday 23 May 2012

Statutory Wills

Craig Ward

Where a client lacks mental capacity sufficient to create a will, a statutory will may be created on their behalf through the Court of Protection. This entails making an application to the court and asking them to execute a will. The application may be made by an authorised person, such as and attorney (acting under a lasting power of attorney), a deputy, or someone entitled to receive a benefit under the will. Once a statutory will is executed by the court this acts in the same way as a regular will drafted by a client.

Statutory wills are often created to provide for efficient tax planning. As it is said It is the right of everyone, ‘if he can, to arrange his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be’, IRC v Duke of Westminster (1936) AC 1. Statutory wills are also made to avoid problems resulting from intestacy. They may also be used where an existing will fails to make expected provisions, or where circumstances change following marriage, divorce, or disagreements with beneficiaries.

A statutory will may be created for someone who is over 18 and is incapable of managing their affairs as they are suffering from a mental disorder resulting in loss of mental capacity. This might be where someone has a diagnosis of dementia, Alzheimer’s disease, or other similar conditions affecting their memory or understanding.

A statutory will is constructed following the principles of best interests under the Mental Capacity Act 2005, section 1(5). This says, ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.’ This is the line taken by Lewison J in Re P [2009] EXHC 163 (Ch) and the creation of statutory wills.

Lewison J recognising that the law must be practicably applied, stresses, ‘...the decision maker is entitled to take into account, in assessing what is in P’s [the client’s] best interests, how he will be remembered after his death.’ ‘...having done “the right thing” by their will.’ This would suggest not a return to Re D(J) [1982] Ch 237, more one of balancing out, of what P would have done given the opportunity, in conjunction with the court acting in P’s best interests following section 4 of the Mental Capacity Act 2005. This means there will be a closer examination of P’s past and present wishes, feelings, belief and values, together with those who care or manage their affairs for them, in determining the contents of their statutory will.

The procedure for drafting a statutory will is as follows:

       a doctor confirms the client lacks mental capacity
       the will is drafted in the client’s best interests
       the Court of Protection application form is completed
       an affidavit is sworn in support of the application including any exhibits
       a consent form is signed by the person being appointed executor

It may also become necessary for the Official Solicitor to be appointed to represent the person who lacks capacity during the application process. In some instances there is also a hearing at the Court of Protection to resolve issues. It is however more usual for discussions to take place resolving issues rather than a court hearing.

The execution of a statutory will involves an authorised person appointed by the court (such as an attorney or deputy or other appointed person) signing the will in the presence of two or more witnesses. The witnesses then to sign, adding their names and addresses. The statutory will is then sealed with the official seal of the Court of Protection.

A statutory will has a similar effect as if the client was able to make a regular will subject to the provisions of the Wills act 1837.

The cost of making the statutory will is greater than those of making a regular will, these costs include instructing a solicitor and application fees payable to the Court of Protection.

 If you require assistance with this matter please telephone 01992 422128 or email me -

Tel: 01992 422 128

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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