17 November 2021

It’s widely recognised that it is good to have a Will for a number of reasons but what if your family member lacks capacity to make a Will; does this mean they can never have a Will or that an old Will cannot be altered?

No it doesn’t! A special type of Will can be put in place on their behalf. It’s called a Statutory Will and is formally authorised and approved by the Court of Protection, which is a special court set up to make decisions for those who cannot make them due to lacking mental capacity. The process to put this type of Will in place is complex and can be costly but there are many circumstances where it would be very beneficial to apply to the Court for a Statutory Will to be authorised. The Court can also authorised alterations to existing wills. For example:

• The existing will or intestacy position does not reflect (or no longer reflects) what the individual may have wanted or is in their best interests;
• An item gifted in their Will needs to be sold during their lifetime in order to fund care but doing so significantly alters their testamentary distribution;
• There has been a significant change in circumstances (for e.g. family members have become estranged, people have died and there is no replacement named, the people named are simply no longer involved in the life of the individual or they have already given away property or items specifically mentioned in the Will);
• The individual’s estate has either reduced or increased greatly in value, meaning new provisions need to be made or existing provisions amended;
• Tax planning purposes (if this can be demonstrated to be in the individual’s best interests rather than the interests of their beneficiaries).

What will the Court of Protection take into account?

When considering a Statutory Will application, the court will try to encourage the individual (who they refer to as ‘P’) to participate wherever possible, and will look at the factors listed in section 4 of the Mental Capacity Act 2005, such as:

• P’s past and present wishes and feelings (and, in particular, any relevant written statement made by P when they had capacity).
• The beliefs and values that would be likely to influence P’s decision if they had capacity.
• The other factors that P would be likely to consider if they were able to do so.

In addition to the above factors, the court is also likely to take into account the views of those close to P (such as family, close friends and carers) and, following the case of Re P [2009], they may also consider how P would be remembered after their death – for instance, would they want to be remembered as having done the ‘right thing’?

There is no hierarchy between the factors listed. The weight attached to the various factors, including P’s wishes, will depend on the individual circumstances of each particular case. Ultimately, the Court of Protection must be convinced that authorising the execution of a Statutory Will is in P’s best interests.

Statutory Will applications are complex, and the decision of whether to make an application is one to be considered carefully on a case-by-case basis. If you would like further advice, or assistance regarding an application, please contact our specialist team on 0161 839 3884 who will be happy to assist.

Fiona Ludkin, Senior Associate Solicitor - contact her by email or phone on 0161 819 7444.