A Statutory Will can take precedence if you lack mental capacity

STATUTORY WILLS

The law in England and Wales states that for an individual to make a Will, they must have soundness of mind to understand what they are deciding to do with regards to their assets and who will benefit from them. This is known as testamentary capacity.

Mental Capacity Act & Statutory Wills

However, in certain circumstances, even where testamentary capacity cannot be shown, an application can be made to the Court of Protection for a Statutory Will to be made, (s18 Mental Capacity Act 2005). If the Court allows for the Will to be made, the official solicitor (usually) will be instructed to do this.

In an application for a Statutory Will to be drafted, the Court will consider the potential testator’s mental capacity, the views of any relevant third parties and the past and present wishes and feelings of the potential testator, including those set out in any previous wills.

In such applications, the circumstances where a Court allows a Statutory Will to be made, is usually in cases where, for instance, a previous Will is no longer appropriate for various reasons, such as assets have now been sold to pay for care home fees, or beneficiaries have passed away. In most cases, the rules of intestacy would be deemed inappropriate, and a Statutory Will would be required.

Statutory Will Objections

In any application before the court for a Statutory Will to be made, parties can raise objections and the court will hold a hearing, to take those objections into account.

Lawson West can help you apply for a Statutory Will, or object to the making of a Statutory Will. 

Contact Us today. 

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