It is a source of concern to lawyers and families alike that the majority of people never make a will. Often, the intention to make a will is there, but somehow the person never seems to ‘get around to it’ and dies or becomes incapable before a will can be made.
It is possible, however, for a will to be written for someone who lacks the mental capacity to make one. The Court of Protection can, when there are objectively reasonable grounds for doing so, order that a statutory will is created. Such a will can be a variation on an earlier will or, where there is no earlier will, a will can be written from scratch to prevent the estate being distributed according to the laws of intestacy. Sometimes, a statutory will is desired when there has been a change in the circumstances of someone who has an existing will which is no longer appropriate.
For a statutory will to be created for someone, that person must lack the mental capacity to do this for him or herself. The task which faces the Court of Protection is to create the will which would have been written by the person at that time were he or she mentally competent to do so. In doing this the Court will consider the known views and attitudes of that person with regard to relevant matters and people. The Court will not try to steer the middle path in order to ‘keep the peace’ within a family if it is the Court’s view that that is not what the person would have done.
To have a statutory will prepared, sufficient evidence must be gathered regarding the person’s lack of mental capability. Only if the Court is convinced that the evidence is there will it permit a statutory will to be drawn up. The Court will then take account of the person’s circumstances and known views in order to take a reasoned view of the content of the will.
If a statutory will is being considered, it is important to take legal advice early in the process, especially where the statutory will is intended to vary an earlier will, as there may well be technical legal issues to address. Consideration will also need to be given at an early stage to possible claims on the estate by dependants. Once all the necessary information has been gathered, it is presented to the Court, which will consider the evidence before it: the Court will seek to take a ‘broad brush’ approach and will not seek to create a will filled with detailed provisions.
An application for a statutory will can be made by:
· the receiver for a patient under the Mental Health Act or the person who has applied for the appointment of a receiver if none has yet been appointed;
· anyone who would benefit from the person’s known will or under the application of the intestacy rules;
· any person for whom it might be reasonably expected that provision would be made under the will;
· the person’s attorney; or
· any other person authorised by the Court.