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Making a Will (Statutory Will)
Age-related conditions, serious brain or birth injury or illness may mean an individual does not have the capacity to make a will or has made a will but cannot make necessary changes to their original will. In these circumstances, an application must be made to the Court, for the Court to approve what is known as a statutory will.
If you need to create or amend a will in such a case, legal support will be vital to applying and making (or making amends to) a statutory will.
How JMW Can Help
Without a will, a person's estate will be administered following the intestacy rules (set by the Court) when they die, which may not be a suitable outcome for your family. Therefore, it is important to speak to a professional as soon as possible about making a statutory will. At JMW, we work closely with family members, and depending on their circumstances, we can explain who would inherit and in what order.
It is important to recognise that someone who has lost the mental capacity to manage their finances may still have the ability to make a will. Our Court of Protection solicitors ensure that an assessment of capacity to make a will is made beforehand, to determine if the person has the capability to make a will themselves. If a statutory will is required, our team can guide you through the Court application process.
FAQs on Making a Statutory Will
Who can apply for a statutory will?
There are a number of individuals who can apply for a statutory will on behalf of someone else. This includes:
- A deputy
- A solicitor
- Office of the Public Guardian (OPG)
- The person who has applied to be appointed as a deputy
- Any beneficiary under the last will or intestacy
- Any person who is an attorney under an enduring power of attorney or lasting power of attorney
- Any other person who has permission from the Court
What does the application involve?
Once it has been confirmed that the person does not have the capacity to make or change their will, a statutory will needs to be prepared and sent to the Court, along with an application for approval. The Court will look at the request for the will and determine whether it is in the individual’s best interests.
What happens once the application has been sent to the Court?
Certain people must be advised about the application as they also have the right to put their opinions about the will forward. If an agreement is reached, this can be passed to the judge for approval, without a Court hearing. If an agreement cannot be reached, the Court is likely to have a hearing for the judge to make a decision about whether to put the will in place as it is, with some changes, or not at all.