To make a will, an individual needs to have requisite mental capacity and understanding in order to give their full, conscious consent.
However, for those lacking mental capacity (legally referred to as testamentary capacity) it is not possible to create their own will. In these cases, someone else can make a will on their behalf. This is known as a ‘statutory will’.
What is a Statutory Will?
A statutory will is a will written on an individual’s behalf in the event that they do not have testamentary capacity to create one themselves. It must be authorised by the Court of Protection, and then signed on the individual’s behalf by their attorney or deputy.
If somebody is diagnosed with, for example, dementia, it’s important to note that this does not automatically class them as incapable of creating their own will. Applications for statutory wills will be considered on a case-by-case basis. When in place, a statutory will is just as effective as if the individual had made the will themselves.
How to Make a Statutory Will
When making a statutory will, you will need to apply to the Court of Protection. You will find that the application contains several forms, including an assessment of capacity form that establishes why the individual is unable to create their own will. A medical professional or the individual’s doctor will need to fill out this section of the application.
In your application, you will also need to include an explanation of why you wish to change the will, if there is already an existing will. Generally, you may find that it’s easier to have your statutory will accepted if there is no previous will in place, or if the circumstances of the individual have changed dramatically since their last will was submitted.
Full details of the person’s family will need to be included, as well as details of the person’s financial situation and assets. Finally, you will of course also need to add a draft of the statutory will itself.
What Happens Next?
Once you’ve filled out all the forms, they are sent to the Court of Protection, and you must inform anyone that may be affected by the changes within the will that you have applied. It’s important that all parties are aware of any statutory will applications, because they may have the legal right to contest the will.
The full application process for a statutory will usually takes up to six months. However, in certain cases, such as if the individual is terminally ill, their will may be able to be seen sooner as an urgent application.
The court will consider the application and make an order allowing the applicant to sign the will on the individual’s behalf, if it is approved. Once this has been officially sealed by the Court of Protection, the statutory will is just as legally valid and binding as any other will.
Get Expert Advice from Howells Solicitors
Applying for a statutory will can be a time-consuming process and emotional process, so get in touch with our team of will and probate specialists for thorough, empathetic advice and a helping hand throughout.
