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
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
- 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.