Statutory wills

What is a Statutory Will

If the vulnerable adult does not have a will or one which is out of date an application can be made for a statutory will to be granted.

A statutory will is similar to a regular will. The main difference is that unlike asking the person concerned what they would like on their will this has to be determined from evidence regarding what the person themselves would have wished. The Court of Protection uses the term P to refer to the person lacking mental capacity. P stands for patient. On a regular will the will maker can choose their executors. They know their property and assets and have an idea where they would like these distributed. If they want to make specific gifts they can. If they have children under 18 they can choose appropriate guardians for them. They can say if they would like to be buried or cremated. When making a statutory will all these points have to be worked out on behalf of P. 

The executors on a statutory will are often P’s attorney or deputy. If no one can be found a professional can be appointed such as  a solicitor or other professional. 

A regular will has an attestation clause at the end. This directs how the will should be signed to ensure it is valid. A statutory will has a special type of attestation clause to reflect that P cannot sign and someone has been appointed by the Court of Protection to sign for them. 

What is required to make a statutory will application 

Making a statutory will application requires a package of information to be presented to the court. The following are the essentials. Added to this is evidence of why it is in P’s best interests to make a statutory will. 

  • Copy of any existing will or codicil.
  • Consents to act by the proposed executors.
  • Details of P's family in the form of a family tree, including details of the full name and date of birth of each person included in the family tree. 
  • Schedule detailing P's current assets, with up to date valuations. 
  • Schedule showing the estimated net yearly income and spending of P.
  • Statement showing P's needs, both current and future estimates and P’s general circumstances.
  • If P resides in NHS accommodation, information on whether P may be discharged to local authority accommodation, to other fee-paying accommodation or to P’s own home. 
  • If relevant, details of the resources of any proposed beneficiary and details of any likely changes if the application is successful.
  • Details of any capital gains tax, inheritance tax or income tax which may be chargeable in respect of the subject matter of the application. 
  • An explanation of the effect, if any, that the proposed changes will have on P's circumstances, preferably in the form of a ‘before and after' schedule of assets and income. 
  • If appropriate, a statement of whether any land would be affected by the proposed will or settlement and if so, details of its location and title number. 
  • Where the application is for a settlement of property or for the variation of an existing settlement or trust, a draft of the proposed deed.
  • Copy of any registered enduring power of attorney or lasting power of attorney.
  • Confirmation that P is a resident of England or Wales.
  • Up to date report of P's present medical condition, life expectancy, likelihood of requiring increased expenditure in the foreseeable future and testamentary capacity. 

Contact Alain Bornstein or Ronald Hiller at Craybeck Law LLP, 301 High Road, Benfleet, Essex, SS7 5HA or phone us on 01268 947044 to discuss a Statutory Will.

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