LEGAL CORNER: Statutory wills and their use

ARE YOU an attorney, deputy, or beneficiary of a will relating to a person who now lacks capacity?

Has the will become invalid or obsolete by virtue of the beneficiaries predeceasing the testator (the person making the will)?

Is inheritance tax mitigation needed, where the testator’s estate exceeds the nil-rate band?

Did you know that all these matters can still be addressed, regardless of the fact that a testator may no longer have the necessary testamentary capacity to alter or make a new will?

The Court of Protection is authorised to approve a new will or codicil, called a ‘Statutory Will’ or ‘Statutory Codicil’, on behalf of an incapacitated person (who we will refer to as P).

An application to the court can be made by a registered attorney, deputy or a beneficiary under of an existing will or intestacy where no will exists.

Such applications usually seek to make appropriate changes to deal with current issues or problems that would otherwise prevent a personal representative being able to administer P’s estate in accordance with P’s past wishes and feelings.

To make such an application, the applicant has to provide the Court with medical evidence to confirm that P lacks the required testamentary capacity that he would otherwise need to make a will.

This evidence is then submitted to the court, together with details of P’s personal and financial circumstances.

Such information will include details of P’s family history, enabling the court to consider whether P’s family should join in the application and comment on the proposed will

or codicil.

P’s capital assets are disclosed together with details of whether there is a need to mitigate P’s inheritance tax liability, if this is required.

Where applicable, evidence of potential beneficiaries who have since died leaving P’s estate partially or fully intestate is also provided.

Finally and very importantly, evidence of P’s past wishes and feelings are provided together with copies of any past wills (and codicils) made by P to enable the court to consider whether the proposed will or codicil is appropriate for P in all the circumstances.

If a proposed will or codicil is approved by the court, then the

court will make an order authorising the applicant to sign the will/codicil on P’s behalf.

We have dealt with many statutory will and/or codicil applications on behalf of clients through our specialised Court of Protection Team who can be contacted on 01243 786668 for further advice.