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When Will A Statutory Will Be Granted?

Posted: Friday, 4 January 2019 @ 13:43

If a person does not have the necessary testamentary capacity to make a will, then the court can make an order authorising a person to execute a will on that person's behalf.

An application needs to be made asking the Court of Protection to authorise the execution of that will. (the statutory will)

In what circumstances will a statutory will be made? ·        

  • the vulnerable person has never made a will before ·   
  • the estate has reduced/increased in value, for example, because of compensation awarded  
  • a beneficiary (or beneficiaries) under an existing will has passed away a beneficiary under an existing will has already received substantial gifts, and the will should be adjusted
  • tax planning purposes         

What are the legal variables to consider?

Obtaining a statutory will is not the easiest thing to obtain but doable and factors the Court of Protection will look at include

  • the vulnerable person’s past and present wishes and feelings (and any relevant written statement made by the vulnerable person when he had capacity).
  • The views of those who are engaged in caring for the vulnerable person, along with the views of the attorney chosen by the vulnerable person, or the view of the deputy appointed for the vulnerable person by the court of protection, as to what would be in that vulnerable person’s best interests.

Ultimately, the Court of Protection must be convinced that authorising the execution of a statutory will is in the vulnerable person’s best interests and that is the key thing to keep impressing on the Court. Presentation is key.