Everyone in England and Wales has the right to testamentary freedom to make a will for themselves, unless it is deemed that a person is unable to make a will for themselves. If someone has capacity to make a will, they are able to instruct a solicitor and provide them their wishes for a will. If however, someone doesn’t have capacity, and the Rules of Intestacy are not sufficient to distribute all of their estate, then an application to the Court of Protection to execute a will on behalf of the person, will be required.
A statutory will is a will created by the Court of Protection on behalf of an individual who lacks the mental capacity to make their own will. This typically happens when someone has a condition like dementia or a severe brain injury that prevents them from understanding the implications of making a will. The Court of Protection, a specialized UK court, has the authority to make these wills under the Mental Capacity Act 2005.
The testamentary assessment
The first step is whether the person has testamentary capacity to execute a will themselves. An expert in mental health would be the preferred option to carry out the testamentary assessment, as GP’s do not usually have the time to assist with the assessment.
An assessor will be examining the person’s understanding of the following in their assessment:
- Their understanding of the reason and effect of making a will
- Their understanding of the extent of their assets
- Who their beneficiaries are, and what obligations they have towards those beneficiaries
The assessor needs to also confirm that they are not suffering from delusions that impact their views to consider their obligations under ‘3’ above.
The assessment will provide the Court of Protection evidence as to the client’s capacity. This will be attached to a full application to the Court. The Official Solicitor will be invited, by the Court of Protection, to act as Litigation Friend, acting in the best interest of the person, in the proceedings.
Subject to the Court of Protection approving the proposed Will for the person, the Deputy (or other suitable party named in the application who has authority to sign on behalf of the person) will provide authority for the Will to be executed on behalf of the person.
Explaining how it all works in practice – Johny’s story
Johny* needed heart surgery when he was still very little. Sadly, his brain was deprived of oxygen during the operation leading to him suffering a hypoxic brain injury and post operative encephalopathy. Because of his injury Johny has complex full body seizures, severe anxiety and severe learning difficulties. He requires 24/7 care which is provided by his mum and a care team.
Johny’s injuries were caused by a mistake during his surgery and with the support of his mum who was his litigation friend and Enable Law was successful in a medical negligence claim. The claim secured significant funds to cover his lifelong care needs but also purchase an adapted property that he will be able to live in with his family so he can be as independent as possible in the future while still having the space he needs for his carers and therapies.
Johny’s injuries mean that he does not have capacity to manage his own financial affairs. He was also assessed as not having capacity in relation to making decisions about his will. themself. Because of his large compensation award, his Court of Protection Deputy made a best interest decision to apply to the Court of Protection to execute a Will on Johny’s behalf.
Johny had had no contact with his father since his 14th birthday. In fact his dad was presumed dead. For that reason Johny’s Deputy and family felt it would not be in Johny’s best interests for the Rules of Intestacy to apply. If they did it would mean that if Johny died before his parents did then his estate (so anything that belongs to Johny) would be shared by his parents in equal shares.
Therefore, an application, with a draft proposed Will, was provided to the Court of Protection, excluding Johny’s father from the will.
The last known whereabouts of Johny’s father was in Botswana in the 90’s. The Official Solicitor advised the Deputy to make every best effort to locate him and serve a copy of the application on him, inviting him to join the proceedings.
The Deputy instructed a tracing agent, who was able to identify that the father was very much alive and lived in Botswana, to serve the application.
As Botswana is outside the UK’s jurisdiction, extra measures had to be taken to abide by the formalities of serving the application to Johny’s father
His father did respond to the application, however, advised that he did not want to be joined as a party to the proceedings and would not contest the proposed Will, which excluded any entitlement to him.
After a long process, we were able to achieve the desired will for Johny. This way we made sure that if something was to happen to him his mum and remaining family would not have to share his estate with his estranged father. .
*name changed to protect client anonymity
How we can help you with statutory wills
If you have a dependant or loved one lacking capacity who has significant assets in their name, it is important to consider what would happen to these assets in the event of their death. These are all very difficult things to consider and deal with but become even harder to manage if the worst happens and you find yourself being unprepared. If you want to speak to a member of our Mental Capacity team to find out more about the process and how we could help you call us for free on 0800 044 8488 or fill in our contact form so we can call you back at a time convenient for you.
