What is a statutory will
People who suffer from brain impairment, such as dementia or a traumatic brain injury, are still able to leave a will.
This can be done, in specific circumstances, by the Court of Protection, which has powers to authorise someone else to sign that individual’s will for them. That will is then known as a statutory will, and the individual’s estate would be administered in exactly the same way as any other valid will.
Advantages of making a statutory will
There are many advantages to making a statutory will, not least the communication which takes place with the vulnerable individual’s family and any close friends. Advantages include:
- Alleviating any possible disputes: The process involves all potential beneficiaries of the vulnerable individual’s estate being served with formal notice, or a copy of the whole application, and being given an opportunity to speak up about what they think the individual would have wanted, if they had been able to express their wishes. This process often flushes out any disputes which might have arisen after the individual’s death and allows them to be resolved sooner rather than later.
- Recognises important people: Another advantage is that a will can be made that recognises the people closest to the vulnerable individual. If the individual is capable of expressing their feelings and naming people, then the court will try to give effect to those wishes, subject to the overall circumstances.
- Ensures a will is in place: If they did not already have a will, their estate will go to relatives under an intestacy, relatives whom the individual may not even know, or who have had no involvement in their life since birth. On the other hand they might have a will which is out of date or invalid, and this would also present problems when it comes to the administration of their estate.
Potential difficulties obtaining a statutory will
Statutory wills are expensive to apply for and the court will not grant one in every case. There has to be a clear explanation of why it would be in the vulnerable person’s best interests to have a will made for them.
Tax planning is a reason that the court would not currently consider to be a sufficient benefit to the individual to grant a statutory will, but it can be taken into account if there is another good reason that a will should be made for the individual.
Key considerations before making an application
It is not unusual for an application like this to cost £8,000 or more and can take a while to complete. However, it is likely that it would cost significantly more if there are any disputes.
It is important to take into consideration the time it takes to complete a statutory will. It can take 18 months on average to receive an order, and another 18 months after that to finalise everyone’s legal costs. Currently, all legal costs are paid from the vulnerable individual’s estate, although this might change in the future.
Although these wills are not common, in rare cases, it can be a very useful way of ensuring that a vulnerable person’s wishes and feelings are formally recognised and that those who have cared the most are thanked.
If you would like to find out more about statutory wills, please get in touch with Genevieve Powrie or a member of our elderly, care and mental capacity team.
What is a statutory will
People who suffer from brain impairment, such as dementia or a traumatic brain injury, are still able to leave a will.
This can be done, in specific circumstances, by the Court of Protection, which has powers to authorise someone else to sign that individual’s will for them. That will is then known as a statutory will, and the individual’s estate would be administered in exactly the same way as any other valid will.
Advantages of making a statutory will
There are many advantages to making a statutory will, not least the communication which takes place with the vulnerable individual’s family and any close friends. Advantages include:
- Alleviating any possible disputes: The process involves all potential beneficiaries of the vulnerable individual’s estate being served with formal notice, or a copy of the whole application, and being given an opportunity to speak up about what they think the individual would have wanted, if they had been able to express their wishes. This process often flushes out any disputes which might have arisen after the individual’s death and allows them to be resolved sooner rather than later.
- Recognises important people: Another advantage is that a will can be made that recognises the people closest to the vulnerable individual. If the individual is capable of expressing their feelings and naming people, then the court will try to give effect to those wishes, subject to the overall circumstances.
- Ensures a will is in place: If they did not already have a will, their estate will go to relatives under an intestacy, relatives whom the individual may not even know, or who have had no involvement in their life since birth. On the other hand they might have a will which is out of date or invalid, and this would also present problems when it comes to the administration of their estate.
Potential difficulties obtaining a statutory will
Statutory wills are expensive to apply for and the court will not grant one in every case. There has to be a clear explanation of why it would be in the vulnerable person’s best interests to have a will made for them.
Tax planning is a reason that the court would not currently consider to be a sufficient benefit to the individual to grant a statutory will, but it can be taken into account if there is another good reason that a will should be made for the individual.
Key considerations before making an application
It is not unusual for an application like this to cost £8,000 or more and can take a while to complete. However, it is likely that it would cost significantly more if there are any disputes.
It is important to take into consideration the time it takes to complete a statutory will. It can take 18 months on average to receive an order, and another 18 months after that to finalise everyone’s legal costs. Currently, all legal costs are paid from the vulnerable individual’s estate, although this might change in the future.
Although these wills are not common, in rare cases, it can be a very useful way of ensuring that a vulnerable person’s wishes and feelings are formally recognised and that those who have cared the most are thanked.
If you would like to find out more about statutory wills, please get in touch with Genevieve Powrie or a member of our elderly, care and mental capacity team.