A statutory will is written on behalf of someone who lacks the capacity to write their own will and is approved by the Court of Protection. 

The statutory power lies within the Mental Capacity Act 2005 (MCA 2005). It states that ‘the Court of Protection has authority to make decisions for an individual who lacks capacity to make those decisions for himself’, and that this decision-making power extends to ‘the execution for P of a will.

People who find themselves in this situation may have been in a serious accident, developed dementia or another neurological illness, or may have been born with a disability, and their circumstances mean that they need someone to act on their behalf

Examples where a Statutory Will may be required

• The person lacking capacity did not make a will before they lacked capacity

• A change in the will is required due to a change in the person’s circumstances

• Tax planning reasons

Making an application to the Court of Protection

There are three requirements that must be met in order to make an application to the Court of Protection. The person concerned must be over 18, lack capacity to make a will, and be domiciled in England or Wales.

How is a lack of mental capacity determined?

It is a legal principle that everyone is assumed to have mental capacity unless proven otherwise (The Mental Capacity Act 2005 states ‘you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability’.

To prove someone has capacity to make a will, the law uses a test that was set out in the case of Banks v Goodfellow. It says that anyone making a will must understand:

i)            The nature and effect of making a will

ii)           The extent of their assets

iii)    Who their beneficiaries are, and what obligations they have towards those beneficiaries.

It also says that they must be free from any delusion of the mind that would affect their dispositions towards those beneficiaries.

In recent years there have been debates as to which test should be used when assessing capacity. Should the case of Banks v Goodfellow be used, or the wording from Section 2 of the MCA? In a recent case (Clitheroe v Bond), the test in the case of Banks v Goodfellow was upheld and because of this, it is used as the current test for capacity.

Mental capacity is a complex topic, but the key point is that it is not a “blanket state”. A person may have the capacity to decide what food they would like, or which shop they would like to go to, but they might not be able to decide on how they would like to invest their money or how to distribute their estate in a will. Capacity is specific to the decision needing to be made. It is also time specific, and if the individual is still able to make complex decisions on a “good day” they should be encouraged to do so.

How will the Court of Protection decide whether to approve a Statutory Will?

The court makes its decision based entirely on what would be in the best interests of the individual. The court will first assess whether there is a chance that they could regain capacity in the future. If there is a prospect that capacity could be regained, then there may be no need to make a Statutory Will. But if there is no prospect of - regaining capacity, the court will then assess what is in their best interests.

Best interests of the individual 

The court will take into consideration:

• The individual’s past and present wishes and feelings (and any relevant written statement they had made when they did have capacity)

• The beliefs and values that would be likely to influence the individual’s decision if they had capacity

• The other factors that the individual would be likely to consider if they were able to do so.

The court may consider the views of those who are involved in caring for the person concerned, along with the views of the attorney, or the view of the deputy appointed for that person by the Court of Protection, as to what would be in their best interests.

While the wishes and feelings of the individual will be significant, they are not paramount. Although the court must consider any express wishes, the Court of Protection must be convinced that authorising the Statutory Will is in the individual’s best interests.

Executing the Statutory Will

If the court decides to approve a Statutory Will application, it will need to be signed by an authorised person on behalf of the individual concerned, in the presence of two or more witnesses. This will then be sealed with an official court seal.

Deciding whether a person needs a Statutory Will can be difficult, sensitive and confusing, but the Court of Protection team at Birkett Long can help provide advice as to whether an application is required. As seen here, there are requirements that need to be met to make a Statutory Will application and these can be difficult to navigate. Please get in touch for further advice and a free initial telephone conversation.