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| 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 - craig@gardenhousesolicitors.co.uk
www.gardenhousesolicitors.co.uk
Tel: 01992 422 128
Email: info@gardenhousesolicitors.co.uk
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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