Background

It is a commonly known fact amongst lawyers and will writers that only about a third of the population have made a will. For those who have, their advisor’s parting words will often be that the will needs to be reviewed in 3 to 5 years or if circumstances change.  People’s lives change and they don’t always get round to reviewing their wills when in theory they should.

Sometimes when a person becomes ill or is losing mental capacity, reviewing their will may be bottom of the list in terms of priority, and it may be too late in terms of having the necessary capacity to make a will.

However it is the case that under the Mental Capacity Act 2005 (MCA 2005) s1(1), capacity must be presumed unless proven otherwise. Nevertheless, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to a matter because of an impairment of or a disturbance in the functioning of the mind or brain.

In terms of the capacity necessary to make a will, the test set out by Cockburn CJ in Banks v Goodfellow (1870) remains valid and applicable law notwithstanding the MCA 2005.

Ultimately, if it is determined a person does not meet the above criteria then sadly they cannot make a will. What happens next depends on the person’s personal and financial circumstances, their wishes and feelings and what is in their best interests.

It may be possible to put in place a statutory will for them in certain circumstances. A statutory will is the term for a will which is made on behalf of a person who lacks capacity to make their own will. It can only be made with the authority of the Court of Protection under s18(1) MCA 2005.

Examples of prevailing circumstances of when a statutory will should be considered include situations where:-

• A gift in the current will has adeemed or is likely to adeem and will not be part of the person’s estate due to its sale for instance to pay for care fees;
• The person’s circumstances have changed dramatically since the last will was made such as a marriage, co-habiting, a significant increase or decrease in the size of their estate;
• Provision under an existing will may not be in a beneficiary’s best interests such as a minor child or disabled beneficiary where it could better protected within a trust;
• The person’s tax liability on death could be reduced with better planning. Indeed in IRC v Duke of Westminster (1936) – it is a person’s right “if he can, to arrange his affairs so that the tax attaching under the appropriate Acts is less than it otherwise would be”;
• There are suspicions that a current will may not be valid for instance due to lack of capacity or undue influence. These circumstances should be considered with caution. An application for a statutory will should not be made merely to examine the current will’s validity but it could be in a person’s best interest to avoid conflict and upset regarding his estate;
• There is no will in place and there is a person or persons who might reasonably be expected to be provided for who do not come within the intestacy provisions.

If any of the above scenarios exist or there is uncertainty, advice should be sought from a lawyer experienced in advising on statutory will applications.

Making a Statutory Will Application

Although the Court’s permission is technically required to submit a statutory will application (s50 MCA 2005), there are many exceptions to the general rule which will cover the majority of interested applicants.

The application must contain full details of the person’s personal (including detailed medical evidence and evidence of lacking testamentary capacity) and financial circumstances as detailed in Practice Direction 9F to the Court of Protection Rules 2017. The application also needs to demonstrate why it is in the person’s best interest to do a statutory will. Evidence of the Person’s past and present wishes and feelings, beliefs and values should also be included where possible.

Notice of the application needs to be served on all persons materially affected by it and anyone holding confidential records such as solicitors holding the current will.

Once the court has received the application generally it issues it back to the applicant together with directions. These generally require formal service of notification on the persons recited as respondents or to be notified. In addition, in most cases the court will direct the Official Solicitor to be served and invited to act as Litigation Friend for the person. Straightforward applications may proceed entirely on the paper work however complicated or contested applications may require a hearing.

Generally, a straightforward application for a statutory will would have taken approximately 6-8 months before Covid-19 (probably more like 10-12 months at present) but could be longer if complicated or contested.  If the person’s life expectancy is limited it is possible to expedite the application if medical evidence of the limited life expectancy is provided to the Court.

What must the Court take into account?

Prior to the MCA 2005, the Court’s objective when deciding on a statutory will was to consider what the incapacitated person would have done (Re D(J) 1982). However, following the MCA 2005, the case of Re P (2009) Lewison J (at the time) stated that under the MCA 2005, “the overarching principle is that any decision made on behalf of P must be in in P’s best interest. This is not necessarily the same thing as inquiring what P would have decided if he or she had capacity”. Cases since Re P have varied in the weight given to P’s wishes and feelings dependent on the circumstances of the case.

If the Court approves the statutory will it makes an order for the applicant to execute it.  The original is then sent to the court for sealing.

Costs of a Statutory Will Application

 A statutory will application concerns the person’s property and affairs where r19.2 of the Court of Protection 2017 rules apply such that where “proceedings [that] concern P’s property and affairs the general rule is that the costs of the proceedings… shall be paid by P or charged to P’s estate”. The Court can depart from the general rule if a party has acted unreasonably.

Due to the costs involved in a statutory will application, even where there appears a compelling reason to apply for a statutory will, if the estate would be significantly exhausted in costs, this would invite the Court and Official Solicitor’s criticism and may risk a costs order against the applicant.

Conclusion

 Where a person lacks capacity to make Will, it may be prudent to consider whether to make an application to the Court of Protection for a statutory will for them, where it is in their best interest to do so.