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What Is A ‘Statutory Will’?

7th October 2019

What Is A ‘Statutory Will’?

It’s well known that you have to be of ‘sound mind’ to make a will. Even someone who has been diagnosed with dementia may still be able to make a will, if they have sufficient mental capacity.

What happens if someone does not have capacity? Does it mean that they cannot make a will, and are destined to die ‘intestate’. Or, if they already have a will, that they cannot change it if there is change of life circumstances?

The answer is that they can make a statutory will. Or rather, someone else such as a family member can apply to make it for them.

Mental capacity can be lost through an illness such as severe dementia, or after an accident. Someone with a congenital condition may never have capacity. Lack of capacity is becoming an increasingly common situation: the number of people diagnosed with dementia has risen by 54% in 10 years.

A statutory will is a will made on behalf of someone without capacity, and is authorised by the Court of Protection. The court will aim to ensure that the will is the same as that the vulnerable person would have wished to make if they had the capacity to do so. Once the will is made, it has the same effect as it had been made by if they had the capacity to execute the will themselves.

The Official Solicitor represents the vulnerable person in an application to make a statutory will. If the Official Solicitor agrees the proposed will, then the application will be ‘unopposed’, and the court will approve it without a hearing. If not, or there is some other reason to do so, there will be a hearing before the judge.

The costs of the application are usually met from the vulnerable person’s estate, i.e. their assets.

Notes

To find our more about making a will, click here.