For a Will to be valid, the person making the Will must have the relevant mental ability to do so (Banks v Goodfellow). But what happens if someone loses capacity without making a Will or you need to make changes to an individual’s Will, who has lost capacity, in order for their wishes to be met? This is where a “Statutory Will” is needed.
How are Statutory Wills Made?
Statutory Wills are made by the Court of Protection under s18 (1) (i) Mental Capacity Act 2005. An application has to be made to the Court of Protection for authority to make the document, authority does not automatically vest in an Attorney or Deputy without permission being granted. The application for a statutory will itself is quite a complicated and lengthy process.
Someone who lacks the mental ability to make a Will may benefit from one where:
- There is no current Will and they have no family but there is someone or a charity it is thought they may have wished to inherit
- There is no current Will and there are minors involved
- The Will is out of date because of the death of someone named or a change in circumstances (family, friends, beneficiaries, assets)
- There is doubt surrounding the Will – capacity, undue influence etc
- There is the potential for a claim to arise post death because of non-provision
- To ensure legacies do not fail because of a change in circumstances
- To mitigate Inheritance Tax
- Post death variation could post problematical
Re P is the leading case on Statutory Wills and has highlighted the importance attached to s4 Mental Capacity Act 2005 and “best interest decisions”. It is no longer necessary to go through the mental gymnastics of trying to decide what the person lacking capacity might or might not have wanted, it is now relevant to decide what is in their best interests when making a Statutory Will on their behalf. Any views they are able to express should still be sought and considered in the decision making process. If you have any questions regarding statutory Wills or best interest decisions please do not hesitate to contact us at 01273 604123 or email us at firstname.lastname@example.org.