Wills are a cornerstone of estate planning, a legal document that allows individuals to express their wishes regarding the distribution of their assets upon their death. However, the process becomes significantly more complex when the individual lacks the mental capacity to make a will, a situation that raises both ethical and legal questions. In the United Kingdom, this is where the concept of a statutory will comes into play, a provision made by the Court of Protection for those who cannot make a will themselves.

Here, JMW explores statutory wills, specifically focusing on what they are and the complexities that arise when there is disagreement about what is in someone's best interests. Whether you're a legal professional, a carer, or someone with a family member facing these challenges, understanding the nuances of statutory wills is crucial for navigating this sensitive area of law.

What is a Statutory Will?

A statutory will is a legal instrument that serves the same purpose as a traditional will but comes into existence under different circumstances. Unlike a regular will, which is made by an individual of their own will and volition, a statutory will is made and approved by the Court of Protection on behalf of someone who lacks the mental capacity to make a will themselves. This is known as lacking 'testamentary capacity'.

So, who can apply for a statutory will? Typically, family members, carers or legal guardians may apply to the Court of Protection to create a statutory will on behalf of the vulnerable person or individual lacking testamentary capacity. However, it's crucial to note that this is not a straightforward process. Applications for statutory wills are complex, often requiring extensive documentation, medical assessments, and sometimes even court hearings. Moreover, they can be costly, both in terms of time and finances.

The Court of Protection takes on the responsibility of ensuring that the statutory will reflects what would have been the individual's wishes, had they the capacity to express them. Once the statutory will is approved by the court, it becomes as legally binding as a regular will. This means it will be executed in the same manner as any other will, following the individual's death.

The Role of Mental Capacity in Making a Will

The concept of 'mental capacity' is pivotal when discussing statutory wills. In legal terms, the specific type of mental capacity required to make a will is known as 'testamentary capacity'. However, it's important to understand that mental capacity is not a black-and-white issue; rather, it exists on a broad spectrum.

For instance, an individual may have the mental capacity to make everyday decisions, such as what to eat or wear, but may not possess the capacity to comprehend the complexities of estate planning or financial investments. This nuanced understanding of mental capacity is crucial because it means that a specific medical or learning disability or psychological diagnosis does not automatically render someone incapable of making a will. Each case must be assessed individually to determine whether the person has the requisite testamentary capacity.

Moreover, it's possible for someone's mental capacity to fluctuate over time due to various factors such as medication, progression of an illness, or even the time of day. Therefore, a lack of capacity at one moment does not necessarily mean a person has a permanent inability to make a will.

In the context of statutory wills, if it is determined that an individual lacks the necessary testamentary capacity, then the Court of Protection may step in to create a will on their behalf. However, this is usually a last resort, undertaken only when it is absolutely necessary and in the individual's best interests.

When is a Statutory Will Necessary?

Determining the necessity of a statutory will is a complex and often sensitive process. Given the intricate nature of the application and the costs involved, a statutory will is generally considered a last resort and should only be pursued if it is absolutely necessary and in the individual's best interests.

So, when might a statutory will be deemed necessary? Here are some scenarios where it could be considered:

The Existing Will or Intestacy Position Is Outdated

If an individual made a valid will earlier in life but has since lost testamentary capacity, and the existing will no longer reflects their current wishes or circumstances, a statutory will may be necessary. Similarly, if the individual has never made a will, the rules of intestacy would apply, which might not align with what the individual would have wanted.

Significant Change in Circumstances

Life is unpredictable, and a vulnerable person's circumstances can change dramatically. Original beneficiaries may pass away, or assets may be gifted or depleted. In such cases, a statutory will can be crucial in ensuring that the estate is distributed in a manner that would have been in line with the individual's wishes.

Fluctuations in the Value of the Estate

If the individual's estate has either significantly increased or decreased in value, a statutory will may be needed to make new provisions or amend existing ones. This is particularly important for tax planning purposes, which can also be a valid reason for creating a statutory will if it can be demonstrated to be in the individual's best interests.

Given these complexities, it's imperative to consult with legal experts who specialise in this area. Applications for statutory wills must be meticulously prepared, substantiating why the proposed will is in the individual's best interests. The Court of Protection will scrutinise each application rigorously, ensuring that the statutory will serves the individual's needs and respects their likely wishes.

The Court of Protection’s Role

The Court of Protection plays a pivotal role in the creation and ratification of statutory wills. This judicial body is tasked with making decisions on financial or welfare matters for people who lack the mental capacity to do so themselves. When it comes to statutory wills, the court's primary objective is to act in the best interests of the individual, often referred to as 'P' in legal terms.

Factors Considered by the Court

The court takes into account a variety of factors when assessing a statutory will application, as outlined in section 4 of the Mental Capacity Act 2005. These include:

• P’s past and present wishes: any relevant written statement or verbal indications from the individual when they had capacity are considered valuable.
• Beliefs and values: the court tries to gauge what beliefs and values would likely influence P's decisions if they had the capacity to make them.
• Other considerations: the court also looks at other factors that P would likely consider if they were capable, above factors such as the needs of family members or tax implications.

Encouraging Participation

Wherever possible, the court aims to involve P in the decision-making process. This could be through direct communication or by considering any previous statements or other wishes and feelings expressed by P when they had the capacity to do so.

Views of Close Relations

The court also takes into account the views and feelings of those close to P, such as family members, close friends and carers. This is particularly important when there is disagreement about what is in P's best interests.

Legacy Considerations

Following the case of Re P [2009], the court may also consider how P would want to be remembered after their death. Would they want to be seen as having done the 'right thing', for example?

What Happens When There's a Disagreement?

One of the most challenging aspects of creating a statutory will arises when there is disagreement among family members, carers or other stakeholders about what is in the individual's ('P's) or person's best interests. Such conflicts can be emotionally charged and legally complex, making the role of the Court of Protection even more crucial.

Navigating Conflicts

When disagreements occur, the Court of Protection serves as the ultimate arbiter. It will carefully weigh the differing opinions and evidence presented, always with the aim of determining what would be in P's best interests. This may involve additional hearings, expert testimonies, or even mediation sessions to resolve the conflicts.

Importance of Evidence

In such contentious situations, the quality and credibility of the evidence presented can be decisive. Medical reports, past statements from P, and testimonies from those close to P can all serve as crucial pieces of evidence. The court will scrutinise this information meticulously before making a decision.

Legal Representation

Given the complexities and potential for conflict, legal representation is often advisable. Specialist solicitors can help present a compelling case to the court, ensuring that all relevant factors are considered.

Case Law

The case of Re P [2009] serves as an important precedent in these matters. It highlights that the court may also consider how P would want to be remembered, adding another layer of complexity to the decision-making process.

Revisiting Decisions

It's worth noting that the Court of Protection's decisions are not necessarily final. If significant new evidence comes to light, or if relevant circumstances change dramatically, it may be possible to revisit and amend the statutory will.