This chapter was added to the APPP in December 2017.
Where a vulnerable person over the age of 18 lacks the capacity to make a will, the Court of Protection may authorise a statutory will to be executed on their behalf.
An application may be necessary if the person is not able to understand:
- what making or changing a will means;
- how much money they have or what property they own;
- how making or changing a will might affect the people they know (either those mentioned in the will or those left out).
2. Testamentary Capacity
Someone may lack the mental capacity to manage their own finances but still have the capacity to make a will. This is called testamentary capacity. If there is any reason to believe that someone does not have testamentary capacity, a specific assessment must be carried out to determine whether or not they do. The person making a will must be capable of understanding:
- the nature and effect of making a will;
- the extent of his/her estate;
- the claims of those who might expect to benefit from his/her will (both those included in the will and those excluded); and
- the person making the will should not have a mental illness that influences them to make bequests in the will that he or she would not otherwise have included.
Section 3 of the Mental Capacity Act 2005 still applies to the areas above, and the person must be regarded as unable to make the decision for him / herself if:
- s/he is unable to understand information relevant to the decision;
- retain such information for long enough to enable him/her to make a decision;
- use and weigh that information as part of the process of making a decision; or
- communicate his/her decision.
If a vulnerable person does not have testamentary capacity, then an application for a statutory will needs to be submitted to the Court of Protection.
3. When can a Statutory Will be made?
There are many situations where a statutory will may be necessary, such as:
- the vulnerable person has never made a will before;
- the estate has reduced in value;
- the estate has increased in value, for example as a result of compensation awarded;
- tax-planning purposes;
- a beneficiary or beneficiaries under an existing will have passed away; or
- a beneficiary under an existing will has already received substantial gifts and the will should be adjusted.
The Court of Protection is most likely to allow a statutory will if a vulnerable person has never made a will or there has been a significant change in their circumstances.
4. Who may apply for a Statutory Will?
The Court of Protection will usually need to give permission to apply for a statutory will before any work begins on preparing the will itself. However, some people are exempted from seeking permission. They are:
- the vulnerable person;
- the donor or donee of a Lasting Power of Attorney;
- an attorney under a registered Enduring Power of Attorney;
- a deputy appointed by the Court of Protection;
- someone who may become entitled to the vulnerable person’s estate under the rules of intestacy or under an existing will; and
- someone for whom the vulnerable person might be expected to provide if they had capacity.
If Hull City Council is the deputy for someone who meets the criteria set out in 1, 2 and 3 above then they will not need the Court’s permission to prepare a will, although they will still need to apply to the Court to authorise it. If the City Council is the appointee for someone, they must first apply to the Court for permission to prepare a will and then apply to Court to authorise it. A concerned relative or a friend wishing to make an application will also need the court’s permission before making an application for a statutory will unless they fall under the above categories.
5. What will the Court take into account?
The Court of Protection has to consider whether the decision to make a will on behalf of the vulnerable person is in their best interests. If it is felt to be, the Court will then consider. As far as possible, the following factors:
- the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by the person when s/he had capacity);
- the beliefs and values that would be likely to influence the person’s decision if s/he had capacity;
- the other factors that the person would be likely to consider if s/he were able to do so.
The Court of Protection must also take into account of the views of:
- anyone named by the vulnerable person as someone to be consulted on the matter in question or matters of that kind;
- anyone engaged in caring for the vulnerable person (apart from paid carers) or interested in their welfare;
- any holder of a Lasting Power of Attorney granted by the vulnerable person; and
- any deputy appointed for the vulnerable person by the Court of Protection, as to what would be in the vulnerable person’s best interests.
6. Drawing up the Will
If it is felt, either by the Deputyship Operational Group or by a formal best interest decision making meeting that the making of a statutory will would be in someone’s best interest because they meet the criteria set out above, then the Hull City Council legal section should be consulted and a proposed will should be drafted.
6.1 Information to be provided with application form
In addition to the application form COP1 (and its annexes) and any information or documents required to be provided by the Rules or another practice direction, the following information must be provided (in the form of a witness statement, attaching documents as exhibits where necessary) for any application to which this practice direction applies:
(a) where the application is for the execution of a statutory will or codicil, a copy of the draft will or codicil,2 plus one copy;
(b) a copy of any existing will or codicil;
(c) any consents to act by proposed executors;
(d) details of P’s family, preferably in the form of a family tree, including details of the full name and date of birth of each person included in the family tree;
(e) a schedule showing details of P’s current assets, with up to date valuations;
(f) a schedule showing the estimated net yearly income and spending of P;
(g) a statement showing P’s needs, both current and future estimates, and his general circumstances;
(h) if P is living in National Health Service accommodation, information on whether he may be discharged to local authority accommodation, to other fee-paying accommodation or to his own home;
(i) if the applicant considers it relevant, full details of the resources of any proposed beneficiary, and details of any likely changes if the application is successful;
(j) details of any capital gains tax, inheritance tax or income tax which may be chargeable in respect of the subject matter of the application;
(k) an explanation of the effect, if any, that the proposed changes will have on P’s circumstances, preferably in the form of a “before and after” schedule of assets and income;
(l) if appropriate, a statement of whether any land would be affected by the proposed will or settlement and if so, details of its location and title number, if applicable;
(m) where the application is for a settlement of property or for the variation of an existing settlement or trust, a draft of the proposed deed, plus one copy;
(n) a copy of any registered enduring power of attorney or lasting power of attorney;
(o) confirmation that P is a resident of England or Wales; and
(p) an up to date report of P’s present medical condition, life expectancy, likelihood of requiring increased expenditure in the foreseeable future, and testamentary capacity.
The court may direct that other material is to be filed by the applicant, and if it does, the information will be set out in the form of a witness statement.
The MCA sets out the current statutory scheme for the execution of statutory wills in the Court of Protection. Of particular relevance is section 18 of the MCA which specifically provides that the decisions the Court of Protection may make in relation to the property or affairs of the vulnerable person include the execution of a statutory will provided that the vulnerable person is over the age of 18 years.