Statutory Wills are made by the Court of Protection on behalf of an individual who no longer has the capacity to make a Will as defined by the Mental Capacity Act 2005. The capacity of the testator must be addressed when considering the need for the Court of Protection to make a Will on the testator’s behalf.
There are several reasons why a Statutory Will should be considered alongside the fact that the testator lacks capacity. Some of these include:
- The testator does not have a Will
- A beneficiary in the current Will has died
- A beneficiary of the current Will has already received a substantial gift
- Tax planning
The Court of Protection will request a great deal of information, including medical evidence to support the testator’s lack of capacity, to support their decision of making the Will in the testator’s best interests. The Court will be unwilling to accept an application that is clearly against the previous wishes of the testator, but they are not bound to these wishes as circumstances could have changed. The circumstances will need to be explained in detail to enable the Court to make their decisions.
An application to the Court of Protection for the implementation of a Statutory Will is costly as it will include the application, solicitors and possible court and counsel hearing fees.