The Court of Protection and statutory wills
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On the 5th and 6th August, CLT will host a conference in London addressing capacity and care challenges for the older client.
It has been reported that the number of people registering Lasting Powers of Attorney is increasing. Around 90 percent of people appoint their family members to act on their behalf and the average age of people making an LPA was 63.
If someone lacks capacity to make a will, it is possible to make an application to the Court of Protection to make what is known as a "statutory will" for the incapacitated person.
Medical evidence must be obtained to confirm that the person lacks testamentary capacity to make their own will. Although a person may lack capacity to manage their own financial affairs and already have a Deputy appointed to act for them, it does not automatically follow that they will lack testamentary capacity - the legal test for testamentary capacity is distinctly different and the medical expert will need to address the legal tests for capacity to make a will within his report.
If it is found that the person lacks testamentary capacity then an application to the Court may be made. The Court has perscribed the following people as entitled to make an application:
- A deputy/attorney
- A beneficiary under an existing will
- A beneficiary under the rules of intestacy
- Any dependant
- Anyone authorised to do so by the Court of Protection
The applicant must show why a statutory will should be made and the Court will act in the incapacitated person's best interests when considering putting in place any testamentary provision. Significant information must be provided to the Court in order that it can make a fully informed decision. The applicant will need to provide details of capital, income and expenditure, a detailed family tree, and importantly any views that the incapacitated person may have expressed during their lifetime in relation to their estate. Family and friends may also be consulted for their views.
In most cases, the Official Solicitor will be appointed to act on behalf of the incapacitated person, and they will put their opinion on any proposed will to the Court.
Anybody who is adversely affected of the application will need to be named as respondents and served with copies of the application. They will be entitled to seek their own legal representation in relation to proceedings.
If a statutory will cannot be agreed between all of the parties, then the matter will proceed to an attended hearing before the Court of Protection.
Statutory wills can be a complex and confusing area, often with significant amounts of money in contention. Our Court of Protection team have extensive experience acting in relation to statutory will applications, both contentious and non-contentious. We are also able to act to oppose any applications if you should find that you are being disadvantaged by a proposed will. If you should require advice or assistance please contact us on 0844 980 1429.
0800 840 4929