Making an emergency statutory will

During the coronavirus pandemic, the Court of Protection are prioritising their workload. One type of work they are prioritising is statutory wills for people who have a very short life expectancy. 

What is a statutory will? 

These are wills made for people who lack the mental capacity to make a will. The court gives the person who makes the application to the court the power to sign the will. Without the court’s permission, it is not possible to make a will for someone who lacks the capacity to make a will. 

When should a statutory will be considered?

Examples of these could include:

• Divorce has made the existing will ineffective
• There are additional beneficiaries (i.e. a new grandchild) that the existing will does not provide for
• A marriage has revoked the existing will
• An executor or a beneficiary has died, and there are inadequate replacements
• There has been a major change with the beneficiaries in the existing will, or who would inherit under the rules of intestacy 
• The current will is ineffective because, for example, it was not executed correctly as it was witnessed by a beneficiary 
• A new will could save inheritance tax 
• The existing will leaves a specific property which has now been sold 

The court must be satisfied that a statutory will is in the person’s best interest so the person making the application, therefore, must explain to the court why a will should be made.  

The court will consider all the relevant circumstances and take into account the following factors:

• The person’s past and present wishes and feelings
• The beliefs and values that would be likely to influence the person’s decision, if they had the capacity

Other factors the person would consider, if they could 

The views of:

• Anyone the person has named to be consulted on questions such as these
• Anyone who cares for the person
• Anyone appointed as the person’s attorney or deputy

What is the process of a statutory will?

There are various application forms that must be completed, one of which includes a capacity assessment undertaken by a medical professional. If the statutory will is an emergency because the person has a short life expectancy, the medical evidence of that is also required. 

Once the application is sent to the court, various people must be told about it. This includes the person’s family, and any beneficiaries named in any previous will and the new proposed will. The Official Solicitor will often become involved to represent the person.  What happens next then depends on whether everyone involved agrees or not. 

How can Birkett Long help?

The application forms require a lot of information and can often be quite daunting. It is important that the forms contain all the sufficient information so that it does not cause delays with the court asking for any missing information, and it must be persuasive enough to convince the court to authorise the will. 

We can advise you on whether we think an application would be appropriate, and if so, assist you with the whole process.  We can also advise you if you have received a notification about someone else making a statutory will application. Sometimes not everyone agrees, and we have experience of dealing with contentious statutory will applications if it becomes necessary. 

If you think a friend or family member would benefit from a new will being made, but they lack the capacity to do it themselves, then please get in touch so we can discuss if a statutory will would be appropriate. 

I am working from home, but available to talk if you need any further advice on how to carry out your role. If you have a question, I would much rather you ask and we spend some time having a free chat, than not. We have a team of experts who can advise on attorney and deputy roles. I am based in our Colchester office and can be contacted on 01206 217307 or [email protected].