It is a requirement when making a Will that a person must have sufficient mental capacity – for example knowing the estimated size of their estate and who will benefit from their estate. However, what happens in the event that a person no longer has this capacity to make a Will and there is a good enough reason to change the Will?
In this article, we will consider what a statutory Will is, who can apply and when it might be a good idea to apply for one.
What is a statutory Will?
A statutory Will is a Will made by the court of protection to enable the estate to be distributed in a way deemed to be in the best interests of the person whom the Will is being made for (hereafter ‘P’). The layout of a statutory Will is similar to that of a regular Will, but it will be sanctioned by the court rather than signed by the testator.
Who can apply for a statutory Will?
You must be the court-appointed deputy for P in order to make the application. You can apply to become P’s deputy while simultaneously applying for a statutory Will. A deputy is similar to an attorney acting under a power of attorney, although the deputy has more duties to the court.
In what circumstances can a statutory Will be applied for?
A statutory Will can only be applied for in limited circumstances, particularly where a Will already exists. This is because English law is grounded in the concept of testamentary freedom; the courts will be unwilling to intervene where P has already expressed their intentions in another Will.
However, the courts are more willing to consider applications either where there is no Will in place, or where there has been a significant change in P’s circumstances since the last Will was made. The courts will also consider applications where the previous Will’s validity is doubtful, although such allegations would need to be substantiated.
We can assist you if you believe someone you know may require a statutory Will, or you know that someone is making a statutory Will application on behalf of someone else and you do not believe that this is necessary.
Our contentious probate team specialises in all aspects of contentious probate and is consistently ranked in the top tier of The Legal 500. The team is headed up by Robert Weston, who is listed in The Legal 500 as a “leading individual” and was the instructing solicitor for the successful party in the landmark judgment of Walker v Badmin. Robert, together with Suzanne Lee and Andrew Chandler are all full members of The Association of Contentious Trust and Probate Specialists (ACTAPS) and represent clients both nationwide and abroad in both bringing and defending claims.
If you have a contentious probate matter which you would like to discuss with a specialist solicitor with a view to instructing mfg Solicitors LLP, please visit https://www.mfgsolicitors.com/site/services-for-me/contentious-probate/ for further information and contact details.