Here’s the latest article in our series from Ann-Marie Matthews, Associate Solicitor at Barker Gotelee. In today’s post, she’ll be covering all the details you need to know about statutory Wills, what makes them different to traditional Wills and why they’re so important.
For many people, the idea of establishing their post-death wishes can be quite far down their list of to-do items. Writing a Will means seriously thinking about things that most people prefer to not talk about, such as what happens when you die and who will receive your assets. However, it’s essential that you do have a Will in place as it’s the only way of ensuring that the right people benefit in the right ways from your estate.
One critical part of ensuring that a Will is legally enforceable is that the person who made it was of sound mind. This means that when writing your Will you need to be able to understand what you were writing and the implications of it. So, here’s the problem: what happens if an adult has possessions, like a home, money in the bank or other assets, but doesn’t have the necessary mental capacity to make a Will?
What is a Statutory Will?
Luckily, there’s a solution: Statutory Wills. Wills of this type are overseen by the Court of Protection. This Court was established to protect the interests of people who have either never had mental capacity, or who once had capacity but have lost it, either through illness or accident. The Court owes a duty of care to these people and part of their responsibility is making sure that proper provision is put in place for a person’s assets to be fairly distributed once they have died.
There are two ways this can be accomplished. Firstly, an existing Will can be updated to better reflect changing circumstances. The second option is simply to write a new Will from scratch for the person. Both of these jobs will usually be the carried out by a person named as a Deputy or Attorney. Each of these roles has responsibility for acting in the best interests of people who don’t have mental capacity to make these kinds of decisions for themselves. Another option is for either family members or friends to begin the Statutory Will process.
One of the key challenges that faces the Court of Protection is that the Will-related wishes of the person who does not have mental capacity may not be known. This makes it difficult to ensure that they are treated fairly, as it’s obviously difficult to know what their wishes would be. The only way that the Court can solve this problem is to undertake extremely close scrutiny of the person’s personal circumstances and take into account any feelings they might have expressed that may be relevant, while also taking into consideration the views of those close to the person.
What this amounts to is a careful and thorough assessment of an incapacitated person’s best interests. The Court’s careful focus is often a great comfort to those who care about people who are unable to speak for themselves. What it does is provide peace of mind that the person’s wishes after they die are properly thought about and enacted, as if the person was able to make the decisions for themselves.
Looking for more info? Ann-Marie has also written an article on traditional Wills and why it’s so important to have one.
We hope you found this article helpful – if you’d like to chat about Statutory Wills confidentially, please contact Ann-Marie on 01473 350574 or at [email protected].