Statutory Wills – what are they?
What are Statutory Wills and when might they be needed?
For most people, the idea of setting out post-death wishes carries very little appeal. Preparing a Will requires serious consideration of things that many of us would prefer to leave unsaid and unwritten. It is, however, the only way of ensuring that the right people benefit in the right ways from our estates.
One of the essential aspects of a legally enforceable Will is that the person who made it was of sound mind; they understood what they were writing in their Will, and the implications. So what happens when an adult who has possessions – a home, money in the bank etc – but who doesn’t have the necessary mental capacity, ought to make a Will?
The answer is: Statutory Wills. A Statutory Will is one that is overseen by the Court of Protection. This Court exists to safeguard the interests of people who either never had mental capacity, and those who once had capacity but, through illness or accident, no longer have it. They owe a duty of care to such people including enabling proper provision to be put in place for the fair distribution of a person’s assets once they have died.
Sometimes this means updating an existing Will to better reflect new financial and other circumstances, but it can also involve writing a Will from scratch. These jobs typically fall within the remit of a Deputy or an Attorney, each of whom has responsibility for acting in the best interests of people who don’t have mental capacity to make important decisions for themselves. It is also possible for family members and friends to instigate the Statutory Will process, if they are aware that their loved one either does not have a Will, or an up to date Will.
In seeking to prepare a Will for someone who does not have capacity, one of the challenges facing the Court is in ensuring the fair treatment of the individual’s personal circumstances; any feelings they might have expressed that could be relevant to the distribution of their possessions, and the views of those close to them.
It is a careful and thorough assessment of an incapacitated person’s best interests. This focus is usually of great comfort to those who care deeply about people who are unable to speak for themselves as it can provide some peace of mind that there are proper provisions in place that they believe the person would have wanted if they had been able to make such decisions for themselves.
Ann-Marie Matthews is a solicitor in the private client team at Barker Gotelee, Ipswich Solicitors.