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Mental Capacity Update: Statutory Wills

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Clarion regularly advise on statutory will applications and this blog aims to summarise this area of mental capacity law.

A fundamental per-requisite of preparing a will for a client is that the testator must have “testamentary capacity” i.e. the understanding of what a will is and does, the nature and size of the estate and the identities of those who ordinarily they would be thought to have wanted to benefit. Capacity is known to fluctuate and sometimes a doctors opinion may be necessary.  

Frequently however we are asked to prepare wills for clients where they do not have such capacity, whether they have never had such capacity or when they have lost capacity through illness. Often the family believe that the individual would still have wanted their wishes after their death stating in a will. For such individuals who lack the necessary capacity, we can prepare a “Statutory Will” which is a will approved by the Court of Protection.

It is also not always in pleasant circumstances where we are approached to prepare statutory wills. I have sadly had to prepare them in circumstances where an individual without capacity has been financially abused by family members or friends. When the truth is uncovered, to prevent the accuseds inheriting on that vulnerable persons’ death (whether under an existing will or intestacy) we apply to the Court to prepare a new will. The police are then also more likely to become involved in the matter if the accuseds are no longer “going to get it all anyway”!

Given the competing opinions and factors to be considered in finalising a Statutory Will, the procedure to obtain one is often lengthy and it is ultimately the Court who has the deciding say on the terms of the Will. Often the matter will become argumentative and our highly specialised contentious team are on hand to assist in such cases.

Lynsey Harrison of our contentious private client team recently acted in the widely reported Statutory Will case of NT v FS and others (2013) EQHC 684 (COP) and please see her upcoming blogs and video’s on this in due course.

What are the deciding factors for the Court?

The Mental Capacity Act 2005 dramatically changed the test the Court will  apply when deciding on a Statutory Will. Previously the test was “what would that individual have wanted” however the new test following the 2005 Act is “what is in that persons best interests” which are frequently two very different questions. The test is now on the whole objective rather than subjective.

In deciding what is in the individual's “best interests” the Court must look at all the relevant circumstances including a list of factors set out in Practice 9F of the Court of Protection Rules 2007 which include:

• Details of their family;
• Details of their assets, income and annual expenditure;
• Details of the individual present and future needs;
• Details of the proposed beneficiaries resources;
• Details of the individuals who will be prejudicially effected by the new statutory will. Such individuals will always be joined as parties to the proceedings.

When the Court is weighing all of the factors, the views and wishes of the individual do carry great weight however the Court will not simply follow those wishes. Getting a final will agreed with the Court that hopefully satisfies all parties and also what is in the best interests of the individual requires specialist advice and if you would like any advice in relation to the preparation of Statutory Wills please contact me on 0113 336 3355 or on
stephanie.dunderdale@clarionsolicitors.com


(Practice direction 9F can be found at -
http://www.judiciary.gov.uk/publications-and-reports/practice-directions/cop-practice-directions )

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