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I recently assisted a deputy in making a Statutory Will for his brother, ‘Stephen’. The deputy making the application was the sole beneficiary under intestacy and did not agree that this was in his brother’s best interest.
Stephen had suffered from chronic schizophrenia since a very young age and, therefore, had never executed a will. Now in his early sixties, he had never married nor had any children. He had an estate worth just over £100,000 and was in fully-funded, permanent care. Stephen’s brother, and his deputy, had taken steps to secure funding for his care, resulting in his estate growing each year. He was aware of charities to which Stephen and their mother used to donate and decided it was in Stephen’s best interest to leave his estate equally to those charities. The Court reviewed the application and took the same view; the Statutory Will was authorised.
Having worked with our clients on their applications means I have seen, first-hand, the benefits these applications can make. The application and evidence-gathering is not an easy process, so where do you start …
What is a Statutory Will?
A Statutory Will (or codicil) can be authorised by the Court of Protection (the Court) on behalf of a person who lacks capacity. An application made to the Court to request a will, needs to be clear on the reasons behind the request, as the Court must be satisfied that the Statutory Will is in the best interest of the person concerned. Providing the correct evidence in support of this application is crucial.
The Court does not draft the will itself (nor does it confirm the validity of it). When applying to the Court, it is the acting solicitor who will complete a draft and present it to the Court, along with the application. In appearance, a Statutory Will looks very similar to an ordinary one, however, the wording at the beginning and the end of a Statutory Will is different, because the decision is being taken by the Court, and not the individual.
The solicitor involved in the application will be asked to certify the draft for the Court. The Court then authorises the decision to make the will (on the certified draft) and issues an order authorising a person (usually the applicant) to execute the will. The will is then returned to the Court for sealing.
Who can make the application on behalf of a vulnerable adult?
In my experience, this tends to be the person who has involvement in the vulnerable adult’s financial affairs, such as their deputy or attorney. They are the person(s) with the most knowledge or understanding of the vulnerable adult's financial affairs and will, therefore, be better placed to decide whether the application is in the vulnerable adult’s best interest.
What is the first step?
As an applicant will be asking the Court to make the decision to authorise the will on behalf of the vulnerable adult, the Court must be satisfied that the individual lacks capacity to make this decision for himself or herself. It may be that a vulnerable adult may lack capacity to make property and affairs decisions, or health and welfare decisions, but they could still have capacity to make a will. It is really important that the capacity assessment is carried out by a professional who understands the test required.
When should an application be made?
If the vulnerable adult lacks capacity to make his or her own will, the application can be made once all the supporting evidence has been gathered. This includes addressing why this application is in their best interest and must include:
- what they would do if they were able to make a will for themselves; if they had capacity to understand their financial situation, would they decide to make a will?
- their beliefs and personal values; and
- how they have acted and made decisions for themselves in the past.
Once an application is made to Court, a variety of people must be notified of its existence. This includes all beneficiaries under a current will or intestacy, and anyone deemed to have an interest in the vulnerable adult’s estate. This may include children or grandchildren of a beneficiary and, if not carried out correctly, this potentially large pool of persons can significantly slow down the application's progress through the Court.
Who should I contact?
It is always best to seek advice on any application you are considering making - if there is an objection to a Court application, it can result in a hearing. Our Court of Protection team can answer any questions you may have in relation to an application or current proceedings.