If someone has lost the capacity to deal with their own affairs, in certain circumstances it is possible to apply to the Court of Protection so that a statutory Will can be made on their behalf.
When an individual has not made a Will or their Will needs updating, a statutory Will enables their estate to be dealt with in the way that it is believed they would want. It is authorised by the court after consideration of a number of factors.
Why might a statutory Will be needed?
There are a range of situations in which it might be appropriate to make a statutory Will on behalf of someone who no longer has the mental capacity to make a Will for themselves, to include the following:
• They have made a Will but someone named as an executor or beneficiary has died
• Circumstances have changed and an existing Will no longer reflects what the individual would want to happen to their estate
• The size of the estate has changed substantially so that a Will is needed to deal with this
• The individual has not made a Will and has no family who would inherit under the Rules of Intestacy but does have others in their life whom they are close to, for example, stepchildren that they raised as their own.
Applying for a statutory Will
Someone representing the individual will need to make an application to the Court of Protection asking for consent to the proposed Will being made. They will need to supply full details of the person’s assets, their family, medical evidence, and a copy of any existing Will.
Anyone who would lose out if a statutory Will was made will also need to be involved in the application. Enquiries might be made of the person applying and a hearing could be held.
What will the Court of Protection take into account in permitting a statutory Will?
The court will consider what the individual might have wanted for themselves. If they are able to participate, they can put forward their thoughts.
If they have expressed any wishes in the past, such as in a written note, this would be taken into consideration as well as their beliefs, values and other relevant matters.
Those close to the individual will be able to give their opinion of what he or she would have wanted to happen and whether they would have wanted to look after family members or others in their Will.
Avoiding the need for a statutory Will
Applying for a statutory Will is not a simple process and can be both complex and time-consuming. Wherever possible, a Will should be made while an individual still has the mental capacity to do it for themselves.
This can be reassuring to their loved ones, who will know for sure what their wishes are, and can also help avoid disagreements arising in the future.
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