Statutory wills instructing probate solicitors

Thu 23rd Feb 2023

What is a statutory will? Coodes’ Hayley Gaffney looks at why you might need one and explains the reasons for appointing specialist will solicitors to act on your behalf.

What is a statutory will?

A statutory will can be made by the Court of Protection for someone who does not have the requisite mental capacity to make their own will. Specialist will and probate solicitors, such as the team at Coodes, can help you with statutory wills.

A medical professional must determine that the testator (the person making the will) is unable to make decisions for themselves. The Court of Protection can then approve the creation of a statutory will on their behalf.

Why might you need a statutory will?

A statutory will can ensure that a person’s wishes in relation to their financial and personal affairs are recorded in a legally binding will when they die. Their wishes can be recorded even when they are at their most vulnerable so that, when that time comes, their estate is administered in the way they would have wished.

The testator may, for example, suffer from dementia or another medical condition which means that they do not have the requisite testamentary capacity to instruct will solicitors themselves to create a will or prepare one themselves.

The individual may have expressed their wishes before they lost capacity, but no longer have the necessary capacity to amend their current will or make a will if they have not done so already.

If so, an application for a statutory will can be made for a valid will to be executed on their behalf.

When might you need a statutory will?

The Court of Protection may approve the preparation of a statutory will in circumstances where an individual lacks the necessary capacity to make a will.

This could include circumstances such as if they have no will in place already or their estate has increased or decreased in value or changed significantly since their previous will was prepared.

It might also be that tax planning is necessary or circumstances relating to beneficiaries of a previous will have changed, or they have died.

How is a statutory will written?

A statutory will cannot be made without the Court of Protection’s consent.

A legal solicitor may be required to assist with that application, as there are certain requirements for that application which must be complied with carefully.

These include the need for medical evidence, background information which may influence the Court’s decision on the application, details of the assets of the individual, copies of previous wills, tax information and a draft of the proposed statutory will.

Can a statutory will be challenged?

As with any will, disputes over statutory wills do occur. For example, people may wish to challenge the proposed statutory will if they are worried that it does not reflect the person’s true wishes or the person attempting to make the statutory will is not acting in the testator’s best interests or indeed if they are self-dealing.

The person attempting to obtain a statutory will should always act in the best interests of the person for who the will is being made. Unfortunately, that is not always the case.

For more help

This is a complex area of law and the instruction of specialist will solicitors can help to put your mind at rest and ensure that you get the best help possible.

Coodes’ Contentious Court of Protection Team are here – Melanie Grose, Hayley Gaffney and Ben Sidgwick can all help. You can also use our Contact Us form or call 0800 328 3282.

Thu 23rd Feb 2023

Hayley Gaffney

Associate

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